UK Borders Bill

Public Bill Committee, 20 March 2007.

Clause 28

Liam Byrne (Labour, Birmingham, Hodge Hill)

I beg to move amendment No. 110, in page 14, line 28, leave out ‘or’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss Government amendments Nos. 111 to 114.

Liam Byrne (Labour, Birmingham, Hodge Hill)

These are highly technical amendments. Their purpose is simple: to ensure that the appeal procedures under clause 31 operate effectively. We want to ensure that three things dovetail neatly together: first, the powers for automatic deportation that we seek; secondly, the non-suspension of appeal regime that we are putting in place, and thirdly, the appeal system that we have sketched out in the Bill.

Government amendments Nos. 111 and 114 are designed to ensure that in-country appeals can be brought only on arguable human rights and asylum grounds. Once we have made a decision automatically to deport an individual and they are still in the country, they usually lodge an appeal with the Asylum and Immigration Tribunal. That appeal can contain human rights or asylum claims, but as it is an in-country appeal, it is harder to remove the individual from the country to conduct an appeal that is made on other grounds. Where the claim on human rights or asylum grounds is spurious, we want to be able to certify the claim as unfounded, to stop fraudulent or abusive human rights and asylum claims.

The existing certification powers apply to a claim only before the notice of appeal is lodged with the tribunal. To use the powers that we want to create in the Bill, we need to be able to stop the appeal by temporarily withdrawing the decision automatically to deport, so that we can consider the claim, certify it as unfounded and remake the decision automatically to deport. The effect of that process would be to invalidate any further appeal that is lodged, because the claim has been certified. The appeal would then have to be heard outside the country, if there is still an appeal to be heard. That is simply to ensure that the process of automatic deportation is not hampered by the construction of the law.

Damian Green (Conservative, Ashford)

I have some sympathy with what the Government are trying to achieve with this group of amendments. I have a couple of questions, however. The Minister talked about in-country appeals having to be unarguable, thereby removing the possibility of unfounded appeals. He will be aware that that interpretation will be in dispute. We have all seen instances in which officialdom regards the case for an appeal as unfounded and regards it as unarguable that an appeal should not be allowed. Nevertheless, that is what people pay lawyers for: to argue cases that the other side thinks unarguable. Will the Minister give a bit more detail as to the circumstances in which a case would be regarded as either unarguable or unfounded?

The Minister may correct me on this point, but my understanding of the amendments suggests that the Secretary of State will decide whether an appeal is unfounded. If the Secretary of State is not merely judge and jury in his own cases, but is deciding whether there can be a judge and jury in a case on which he has already taken a decision, that is a recipe for judicial review. I have sympathy with the underlying aim of reducing unnecessary legal delays in the system of arriving at a decision about deportation, but I suspect that in practice there might be one or two gremlins hidden in the interstices of the amendments. I would be grateful if the Minister could address them.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Those are extremely helpful points, which I can clarify. I am grateful to the hon. Gentleman for his sympathetic hearing and I wish to make two points in response. The first is that there is already a process whereby the Secretary of State can certify claims as clearly unfounded, and it operates for asylum claims. We can get a sense of the number of decisions being taken from statistics that are available: for example, between November 2002 and early 2006 something like 5,500 claims were certified by the Secretary of State as clearly unfounded.

The hon. Gentleman is absolutely right that there is the prospect of judicial review. Parliament has some history of debating whether there should be procedures for ousting the process of judicial review. We have had that debate and we have no ambition to return to it. Judicial review is with us, and there are no plans in the Bill to oust, diminish or in any way undermine it. The hon. Gentleman will be interested to know that something like 9 per cent. of the asylum claims that the Secretary of State certified as unfounded in the period that I mentioned were subject to judicial review. He is right to say that there is the potential for judicial review of some decisions, but on the basis of our experience that potential is reasonably low. Only 358 judicial review claims were upheld, as a result of which only 63 certificates were withdrawn. That is a relatively small number given the number of claims certified.

The hon. Gentleman also asked about the grounds on which certification may be appropriate. They include cases in which no fear of mistreatment has been expressed, in which the fear of mistreatment is not objective, in which the feared mistreatment clearly does not amount to persecution or in which sufficient protection or internal relocation is available. The hon. Gentleman asked important questions, and we have four or five years of experience of ensuring that the system works well enough in a reasonably complex area. That is why we intend to extend its scope.

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 56, in page 14, line 32, at end add—

‘(8) A person convicted of an offence and made subject to a deportation order either under the provisions of this section or otherwise may not be awarded compensation in respect of any period spent in custody following their conviction, whether the period in custody formed part of their sentence or not.’.

The purpose of the amendment is to place a bar on offenders made subject to a deportation order receiving compensation. Part of the background to it is that Lin Homer, the director general of the immigration and nationality directorate, recently wrote to the Chairman of the Select Committee on Home Affairs, the right hon. Member for Southampton, Itchen (Mr. Denham), on the subject of foreign prisoners facing deportation. She told him that

“since 1 April 2006 the Department has paid or payments are being processed to 9 claimants and the sum total of these taken together is £55,000...Typically, compensation has been paid out in these cases due to technical deficiencies around serving the detainee with appropriate legal documents.”

The amendment would prevent any prisoner rightfully convicted from receiving compensation in respect of time spent in custody. Two points support that proposition: first, that the prisoners are the architects of their own misfortune, and whatever else might happen to them and whatever other rights they enjoy, they have only themselves to blame for committing offences. Secondly—and even more saliently—for them to receive compensation is unacceptable to the general public, and particularly to the victims of their offending. They must find the receipt of compensation by the perpetrators most offensive—not least because the victims of the crimes might not receive any compensation themselves. It is unlikely, in many cases, that the offenders will have the means to pay compensation to their victims.

If the victims have to use the criminal injuries compensation scheme for compensation, they will find that its ambit is very limited and that the amounts of compensation that are paid—and that is not applicable in every case—are often relatively modest, even by the standards of today’s compensation culture. That is one part of the legal world where the compensation culture does not seem to have taken root. I invite Members to consider the tariff set down by the Criminal Injuries Compensation Authority—I think that most people would come to the conclusion that it is somewhat modest.

It is unacceptable that rightfully convicted foreign offenders receive compensation. I believe that the Government will welcome the provision where the operation of deportation is concerned because, with the best will in the world, it does not always run smoothly, as the Minister knows. There are sometimes difficulties regarding the country to which the person is to be deported. Sometimes, for their convenience, the Government do not want to be put under the pressure of facing a claim for compensation, in respect of decisions that they take about the fate of individual prisoners. The courts might come to a different conclusion under the relevant treaty provisions and decide that compensation is payable.

It is hard to see circumstances in which the public will find it acceptable that those criminals should receive compensation. If the Minister is not with me on that, will he tell me exactly why not and if there is any legal reason why a bar on compensation for foreign prisoners cannot be put in place, or if there is a policy reason why this cannot be done, and if so, what that is? I hope that this is a way of solving a problem that the Government have come up against in the past and might come up against in the future, and that they will welcome the amendment.

Damian Green (Conservative, Ashford)

I rise to support the amendment and to add one narrow but important point. My hon. Friend talked about how the Government have suffered problems with the issue of compensation in the past and might again in the future. I would make the point that they are suffering from it at present. It is a continuing problem and, as the Minister will be aware, I have asked some written questions about the numbers receiving compensation and the levels of compensation. Tens of thousands of pounds have been paid out recently to foreign prisoners who have been kept in over the time of their sentence because of the Government’s inability to deport them. I know that many taxpayers will feel that that is, at however small a level, a ludicrous waste of public money.

David Davies (Conservative, Monmouth)

I join my hon. Friend in supporting the amendment. Does he think that there is any country to which people cannot be deported, when the Government have shown that when they wish to rescue people who have been fighting with Jihadi terrorists they are able to send private jets into countries such as Somalia at very short notice and at great cost in order to pick people up? Yet they seem to have this inability to send violent serial rapists, murderers and other criminals back to countries such as Somalia.

Damian Green (Conservative, Ashford)

My hon. Friend makes a powerful point, but I think it is slightly beyond the scope of the amendment. The wider point about the ability to deport criminals is a difficulty that the Government have faced and have not yet addressed satisfactorily. Regardless of the destination of these would-be deportees, I am sure that nobody paying taxes in this country feels that it is a good use of their money to pay compensation to people who have been convicted of a serious enough offence in this country to have been jailed for it, and who are also eligible to be deported from this country, suggesting that they should never have been here in the first place.

James Clappison (Conservative, Hertsmere)

My hon. Friend mentions the sums that are paid out. I cited the figure of nine defendants receiving a total of £55,000, which by my inadequate mathematics comes out at slightly over £6,000 per criminal. That would be a nice bonus for a criminal. Would my hon. Friend share my interest in knowing what these nine offenders were convicted of in the first place?

Damian Green (Conservative, Ashford)

That is exactly right. That is an extremely good question and one that I hope the Minister can address when he responds. Notwithstanding the deep problems that the Government are in, I am sure that the purpose of my hon. Friend’s amendment is to help and to give proper teeth to this important clause. We support the underlying principles of the clause but we want to make it effective. We want to get the Minister off one of the many hooks that his job entails him being on, which is shelling out taxpayers’ money to people who richly do not deserve it. I hope that the amendment can help him to solve that problem.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful to the hon. Member for Hertsmere for his exercise in lifting me off hooks that I find myself on in my day job. I am enormously sympathetic to the ambitions of the amendment. The hon. Gentleman, as a member of the Home Affairs Committee, has followed the evidence on this question in some detail in both the evidence sessions and the written correspondence that the director general of the immigration and nationality directorate has provided.

The points that I would make fall into two halves. First, IND should not be operating a business in such a way that results in actions being taken that then create claims for compensation downstream. I am doing this from memory, but I believe that those nine cases were some time ago and it was a deficiency in IND’s technical process at that time that led to the papers being served inappropriately. That simply should not happen. It is a further argument for much stronger oversight of the way that IND operates its enforcement capability across its business. These are very often situations that simply should not be allowed to arise.

At the moment individuals have the defence of the courts if they are being held. It is quite permissible for somebody to apply to the AIT for an immigration bail hearing. There are judicial remedies such as the ability to seek judicial review or habeas corpus protection, if an individual believes that they are being unlawfully detained. It is perfectly possible for the individual to invoke the right of the courts. It is down to the courts to decide whether we are detaining someone lawfully or not. If we are detaining someone lawfully, they will not be entitled to compensation, but if we are detaining people unlawfully, the courts should let people out. I would like to be able to deport people faster to certain parts of the world. However, we need only look at what is happening in Zimbabwe, for example, to see some of the arguments for why enforced returns are difficult.

In my office, we think that there are few, if any, no-go zones for deportations. The hon. Member for Monmouth is right that parts of the world were traditionally thought of as hard to remove to, but to where, through the efforts of my noble Friend Lord Triesman, we are now opening up routes back; Somaliland is a very good example. I have recently received an enormous amount of correspondence about an enforced charter return to the Democratic Republic of the Congo, because people were saying that it is not a safe place to return people to. However, the DRC is a landmass the size of western Europe. There are parts of that country that are perfectly safe and where international evidence shows that it is perfectly safe to remove people to, but sometimes the court will arrive at a different view. That is why the AIT is currently reviewing whether we should be allowed to return people forcibly to Zimbabwe. We continue with voluntary returns, but the courts have currently put a bar on forced returns.

David Davies (Conservative, Monmouth)

In his usual eloquent manner, the Minister makes two points very well. One issue is whether or not it is possible to deport people to certain places. I would say that flying planes into some areas is difficult, but there are other ways of doing it. The second, wider issue, which he raised first, is whether sending people back to countries like Zimbabwe is morally right. It may be fairly easy physically to send them back, but my wider point, which we should have the guts to say, is that somebody who repeatedly breaks our laws—who robs, rapes and commits murder, grievous bodily harm or other violent offences that merit prison sentences—ought to lose the right not to be deported. If they then come to harm in those countries, that is their own fault for breaking the law; it is not our responsibility to harbour criminals in this country.

Sir David Amess (Conservative, Southend West)

Order. The amendment is drawn very narrowly and is entirely to do with compensation. However mindful of the temptation, would the Minister try to resist it?

Liam Byrne (Labour, Birmingham, Hodge Hill)

Thank you for your guidance, Mr. Amess. The hon. Gentleman raises a number of important arguments. I will look for an opportunity to respond to some of his good points during the course of the day.

The second half of my comments are in reply to the hon. Member for Hertsmere. He asked if there is a legal barrier to us accepting the amendment—yes, there is. Article 5(5) of the European convention on human rights requires provision in domestic law of an enforceable right to compensation. However extensive my sympathy for his amendment, to have no right of enforcement against IND when IND gets something wrong is not desirable, because that would weaken the incentive for IND to perform its business effectively, efficiently and justly. I think that the amendment might set up an unhelpful set of incentives. Second, there is the bar of the ECHR, which also provides bars on our ability to deport people to certain torture, if not death. I know that that is for a debate about immigration policy in the round, but some of the protections are important and this is one of them.

James Clappison (Conservative, Hertsmere)

I do not want to go along the path of whether or not people should be deported in circumstances such as those just outlined. On the question of compensation, the Minister quotes the ECHR. I do not have the ECHR in front of me, but can he read out the relevant provision to the Committee, please?

Liam Byrne (Labour, Birmingham, Hodge Hill)

The hon. Gentleman is very good at such questions. Unfortunately, I do not have the text of the ECHR in front of me—however, it is arriving quickly from left field. Article 5(5) very clearly says:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Article 5 is the right to liberty and security. There are ECHR barriers that prevent me, sympathetic as I am, from accepting the hon. Gentleman’s amendment.

James Clappison (Conservative, Hertsmere)

I am grateful to the Minister for the spirit in which he responded. However, one could summarise the first part of his answer as him saying that he hopes from now on that the immigration and nationality directorate will always get things right. If nothing else, I admire his confidence in his own abilities in that regard. I do not want to be unkind to him, but I gently remind him that I heard his predecessors say similar things about the IND. My recollection goes back to 1999, when the present Leader of the House, before certain other reincarnations, was the Home Secretary; I remember him appearing before the Special Select Committee considering the Immigration and Asylum Act 1999. I remember that his words were that the single most important task that he had in front of him as Home Secretary was to get the IND right, and to make sure that things ran smoothly in future. With no disrespect to the Minister, I do not share his confidence that the IND will always get things right, at least as far as observing that every strict provision and possible interpretation of the law is concerned, and that there will never be a case brought against the IND in future, not least by foreign criminals claiming compensation. I cannot accept that, with the best will in the world.

On the Minister’s point about a prisoner having the right to the remedy of judicial review, that is fair enough; they have that remedy. They can seek judicial review on the ground that they have been unlawfully detained, and the courts may say that they should be set at liberty. That is one thing, but it is altogether another for them to be paid compensation as well, and that is where the statutory bar would come into place.

On the question of the ECHR, if the Government would like to accept the amendment, but feel that they cannot because of their interpretation of the ECHR, I would want to have a very close look at the wording of that convention and the way in which it has been interpreted by the courts. We often find in this country that the problem is the Government’s fear of the ECHR, or their fear of an adverse interpretation of the ECHR. That leads the Government to take a cautious view of when they would be contravening the convention, or not. That cautious interpretation can have the effect of the Government acting in ways that the public find unacceptable. I am a great supporter of human rights, but I do not feel that they should extend so far as compensation for periods spent in custody by foreign criminals as a result of technical deficiencies, which is what happened in the case I cited to the Committee.

I accept what the Minister says, but I am worried that there is a tendency on the part of the Government, which has been present throughout the Bill and which he has done his best to get round, to introduce tough-seeming measures that are then continuously watered down because of fears of the Government’s interpretation of the legal consequences. The lawyers get at what the Government want to do, and it is watered down and watered down, so that automatic deportation for imprisonable offences becomes automatic deportation for imprisonment, which then becomes automatic deportation for 12 months’ imprisonment for certain offences. It is watered down all the way along the line.

There seems to be a paralysis striking the Government, who are afraid of the most far-fetched examples of possible injustices that might mean contravention of the European convention and other conventions. There is a worry there, and if nothing else, I should emphasise the degree of disquiet that the public feel at paying compensation to foreign criminals, who are the architects of their own misfortune in offending in the first place, and at the disparity between the treatment of the criminals and the victims. I would be extremely interested to know if any of the victims of the offenders whom I have quoted—the minor offenders who received just over £6,000 each—received a penny piece in compensation. I do not know the answer, but I suspect that victims of foreign criminals do not always receive much in the way of compensation, if any. In the light of all those matters, I will be pressing this to a Division.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 126, in clause 28, page 14, line 32, at end add—

‘(8) A foreign criminal subject to a deportation order under subsection (5) shall be deported not more than six months after the making of a deportation order.’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 140, in clause 30, page 15, leave out lines 40 and 41 and insert—

‘(1) A deportation order under section 28(5) above must be made—

(a) not less than 6 months before the first date at which a criminal could be released from prison for an individual sentenced to over 12 months imprisonment; or

(b) on the date a final appeal has been withdrawn or determined, or the latest date on which such an appeal could be brought, for an individual sentenced to less than 12 months imprisonment.’.

No. 10, in clause 30, page 15, line 40, leave out from ‘made’ to end of line 41 and insert ‘within 14 days of conviction.’.

No. 11, in clause 30, page 15, line 46, leave out paragraph (b).

No. 33, in clause 30, page 16, line 6, at end add—

‘(4) Where a deportation order has not been made within one month of the end of the period specified in subsection (2) above, the Secretary of State must write to the judge or magistrate’s court responsible for passing the sentence of imprisonment under section 28(2) in order to explain why a deportation order has not been made and what action he plans to take.’.

Damian Green (Conservative, Ashford)

I will speak to amendments Nos. 126 and 140, which stand in my name; I am aware that they are grouped with others from various hon. Friends. Both of these are essentially probing amendments about the capacity of the Home Office to deport foreign criminals in an effective manner.

The effect of amendment Nos. 126 would be to require the Secretary of State to deport a foreign criminal within six months of a deportation order being made. I would be interested to know what systems and manpower the Minister has in place to ensure, once the orders have been made and due process has been gone through, that the Home Office will get these criminals out of the country.

From our previous discussion, the Committee will be aware that this is a continuing problem, as the Government recognise; indeed, part of the purpose of this entire segment of the Bill is to address that. Whatever the aspirations of Government about criminals not staying in this country if it is possible and desirable to deport them, it simply does not happen often enough at present. If it does eventually happen, it is often too late and, as we were discussing in the previous debate, after expensive compensation claims have been made on the taxpayer.

I hope that the Committee will hear some practicalities from the Minister this morning. No doubt he would regard it as extremely desirable to deport a criminal within six months of the making of a deportation order. I suspect that the general public would feel that this was itself rather lax; I dare say that there would be a view that, if a deportation order has been made, then perhaps one could give a week for various things to happen, and that six months seems a long time for someone to be here—in detention or prison, no doubt, and therefore at vast expense to the taxpayer. I am not urging the Minister to do anything that he does not want to do—still less, anything that the general public would not want him to do fairly quickly. I am seeking to establish whether he would be capable of doing this.

The effect of amendment No. 140 would be to require the Home Office to start proceedings for deportation at least six months before the earliest release date for a person serving more than 12 months, or on the date of a final appeal to termination for those serving less than 12 months.

That, too, is very topical; it relates to a problem that I am sure the Minister and his officials are grappling with. The Home Secretary has said that it is vital to consider deportation early in a prisoner’s term of imprisonment if we are to avoid a fiasco such as that of last May—which led to the sacking of the previous Home Secretary—when we discovered that foreign criminals were not being deported. My understanding from the director general’s letter to the Home Affairs Committee is that at the moment the achievement seems to be that consideration starts some four months before the end of a sentence. Clearly, progress has been made but more is needed.

I hope that the Minister can enlighten us about the practical systems that are in place. If a four-month target has been hit, what is required to meet the six-month target in the amendment? If systems can be put in place now, presumably they can be extended so that all future problems relating to the deportation of foreign criminals will be minimised and we can achieve the happy situation in which our only difficulties concern the potential destination of the criminals.

I am aware that we have had several exchanges about whether it is desirable to deport certain people to certain countries, and how difficult that might be. However, I am sure that the Minister would acknowledge that if that were his only problem in relation to the deportation of foreign criminals, his life would be considerably easier than it has been in the past few months. Ministers will always have genuine difficulties in making individual judgments about whether a person or group of people should be sent back to possible torture or even death. However, those genuine problems have been overlaid with the unnecessary problem of a system that is inadequate to enable them to handle what one might describe as routine deportations—those of people who have committed serious crimes in this country yet whom we find it impossible to deport.

The purpose of the amendments is to probe what is happening in the Home Office, and equally importantly, what plans Ministers have to improve the efficiency of their systems in the coming months and years. If they are not improved, a serious threat to public order and public safety will continue, and that would be hugely undesirable.

James Clappison (Conservative, Hertsmere)

I support the excellent amendment tabled by my hon. Friend the Member for Ashford, and I rise in the same spirit as he did to seek further information about the mechanics of deportation. A certain amount is spelled out in the Bill, but it would be an improvement if it contained a little more detail.

Amendment No. 33 would require the Secretary of State to write to the court responsible for the sentence triggering deportation if the deportation order had not been made within one month of the period specified in the Bill. I say “specified in the Bill” because the Bill sets out a certain amount about the mechanics of the system, and it is clear that when a deportation order has been made following the triggering of the trigger mechanism, time is allowed for an appeal against the conviction or sentence that triggered the order.

My amendment would require the Secretary of State to write to the court if the deportation order had not been carried out within one month of the end of that period. I believe that that would have the advantage of focusing official efforts so as to ensure an efficient process of deportation. The amendment also gives the Minister an opportunity to say a little more about the mechanics of the process.

More generally, there is a need for greater communication between the Government and the courts about what is going on with deportation. I also think that the courts need to have confidence that when a deportation order has been made—that is, they have recommended deportation or passed a sentence on a foreign prisoner of a type that would trigger deportation under the provisions of the Act—it will be carried out.

There have been cases in which senior members of the judiciary have said that they do not have confidence in the deportation process. I could give just one example from last year, when the recorder of York said that he was not going to make a recommendation for deportation in the case of a man who had been jailed for 15 months for offences of fraud. The recorder said:

“Even if I did, I would have no confidence that anyone would take any notice.”

We must get back to a position where the courts have confidence in what is going on regarding deportation. There must be communication between the Government and the courts. I hope that the Minister will be able to welcome the amendment.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful for the chance to sketch out a little more of this territory than I have had the opportunity to do so far. I also respect the way that the hon. Member for Ashford is probing in this territory. Given the events of last spring, it is absolutely right that a degree of scrutiny is brought to bear on this area, which includes asking whether the right level of resources is being applied.

In direct answer to the question by the hon. Member for Ashford, the increase in resources in this part of the IND’s business has been about tenfold over the last year. So, about 600 or 700 people are now working in this particular area. That increase in resources has been an important part of the changes that the Home Secretary has made over the last 12 months. For me, the question now is this: how do we ensure not only that we have increased the number of people who are doing the job but that they are able to operate a process that is far more efficient, so that the overall productivity and output are much higher? In broad terms, that is what the Bill is designed to achieve.

At the moment, around 72 per cent.—nearly three quarters—of foreign national prisoners that we write deportation orders for appeal against the orders. Although 55 per cent. of those appeals end up being dismissed and a further 25 per cent. end up being withdrawn, they involve the IND in a long drawn out process of taking those cases through the appeal system. What we want to do is effectively to certify the cases, so that those appeals can be held abroad. We know that that has a dramatic impact on the number of appeals that we receive. There is a degree of precedent that we can learn from, which is the number of overseas appeals made against asylum decisions; in those cases, we have certified people’s claims as being clearly unfounded and therefore reported them. As I said a moment ago, only 238 appeals have been lodged from abroad in about three and a half years, between November 2002 and September 2006.

Therefore, what we have done over the last 12 months has dramatically increased the level of resources in this area. What we are now seeking to do in the Bill is to increase dramatically the efficiency of the process.

Yesterday, the hon. Member for Ashford not unfairly criticised the stream of management speak that he hears coming from my office. I did not take offence. However, if he will permit me one further foray into that territory, it is important that the way that we set objectives for the IND is right and puts the prioritisation of harm reduction centre-stage. Over the next 12 months, I will personally oversee the design of new objectives for the IND, and tackling harm, particularly the harm caused by foreign national prisoners, will be at the centre of the objectives that I aim to recommend to the Home Secretary. I hope that that is in direct answer to some of the questions asked by the hon. Gentleman.

There are a number of technical issues that it is important to draw out. Amendments Nos. 126, 10 and 140 create constraints on the precise date, time and moment when the Secretary of State might issue a deportation order. It is perfectly reasonable to expect the Home Office to undertake the issue of deportation orders in advance and substantially in advance of somebody being released from custody. We are currently operating at about four months; our target is to get to six months by spring and we are on track to hit that target.

The problem, however, in setting a specific point in the calendar or in the sentence when the deportation order is to be issued is that it may get in the way of our ability to deport people. If, for example, somebody is serving a 20-year sentence, we would want to write a deportation order towards the end of their sentence as the situation in that person’s country may be so unstable that if we were to try a deportation order the court would throw it out. Waiting for a while can sometimes help us issue a deportation order, taking into account conditions in that country which may be more helpful. It may increase our ability to deport people home.

The hon. Member for Hertsmere raised a second issue about the feedback to the courts. There are challenges with the way that the amendment has been drafted. We do run into issues with writing back to courts. If we do not issue a deportation order within 30 days we end up snowing the courts with a large amount of paper and notices, often involving information that will cause us problems under the Data Protection Act 1998. The necessity is not there in the way that the hon. Gentleman tries to describe it because if we want the degree of flexibility and latitude to write deportation orders in order to deport more people we may very often find ourselves in a situation where we repeatedly have to write to judges to say, “We have not done it yet because...” All we are trying to do is to pick the point in the sentence when we maximise our chances of getting people home.

The point that the hon. Gentleman makes is, however, absolutely right. When I talk to immigration judges—which I try to do as often as they let me—very often they do express concern about the misalignment between the removals process and the court process. We explicitly said in our enforcement strategy, published a week or two ago, that we would seek to bring that alignment in. We do have to explore further measures for feeding back news about individual cases to the courts. One of the ways that we can do that is through the new single inspectorate, because it is vital that the judiciary in this country have confidence in the system so that they can continue to ensure that justice is done.

David Davies (Conservative, Monmouth)

I wonder whether I can help the Government a little with two amendments that I tabled—Nos. 10 and 11. I gain the impression that the Minister is genuine in wanting to ensure that foreign criminals are deported expeditiously wherever that is possible and wherever the courts will allow that to happen.

Amendment No. 10 will require that a deportation order be made within 14 days of conviction for an offence rather than, as at present, at a time chosen by the Secretary of State. I think that would help to ensure that matters took place more quickly. The problem with the wording as it stands is that it could drag on for many months, with all sorts of people putting pressure on the Secretary of State not to carry out a deportation order. By accepting this amendment, that pressure is removed and the Secretary of State would simply have to issue an order within 14 days. I think the Minister might find that helpful.

The second amendment would remove clause 30(2)(b). At the moment, the clause states that a deportation order may not be made while an appeal “could be brought”. The problem with the words “could be brought” is that, as we know, lawyers are very good at using all sorts of means to bring forward appeals even when they know perfectly well that those appeals will fail, and since most of them are on legal aid and being funded at the largesse of the taxpayer, it is well within their financial interests to do so and they will do so. Amendment No. 11 would simply remove the words “could be brought”— thereby removing this money feast for immigration lawyers, who would not be able to bring forward all sorts of bogus claims to stop an appeal taking place that was clearly going to fail.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful for the ambition behind this proposal. My slight concern is that, given the increased resources, we are trying to create a process that is as rapid and efficient as possible. Wherever possible, I am therefore seeking to minimise the necessity to write bits of paper or issue decisions that end up having to be revoked.

At the moment, an individual has 28 days to appeal against a conviction. If we were to accept an amendment requiring deportation orders to be issued 14 days after conviction, two consequences would follow. First, somebody might appeal successfully against the conviction inside the 28-day window, and we would then have to revoke the deportation order. That would involve resources in issuing the order and then revoking it, but also in tracking the case in the meantime.

The second concern is that such an amendment might limit our flexibility to issue a deportation order closer to the end of a sentence. Sometimes when a sentence is quite long, that would limit our ability to take into account the current country information available. My fear is that it would jeopardise the flexibility that we are seeking to issue deportation orders at the right point to maximise our chances of getting somebody home with the approval, not the blocking, of the courts.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for the constructive way in which he responded to a constructive set of amendments. We are rowing in the same direction: we all want to see a much more efficient deportation system than has obtained in recent years. Inasmuch as the protections in the clause will help, we applaud them. As the Minister observed, we were interested in their practicalities, and he responded constructively to my concerns. I beg to ask leave to withdraw the amendment.

Damian Green (Conservative, Ashford)

I rise briefly to put on record something that I have thought since I first read the Bill: that the title of the clause is ludicrous. It is called “Automatic deportation” but the provisions are for nothing of the sort. We are about to discuss exceptions, which means that it is not automatic.

As the Minister has eloquently explained, there are huge complications and difficulties. If he were to attempt to create a system of fully automatic deportation, he would be in breach of various international treaties to which Governments have signed up. It is worth putting on record my understanding that “automatic deportation” is an unfortunate term, first used, I believe, by the Prime Minister in Prime Minister’s questions one week. It does not accord with the reality of life as it is or as it will be when the Bill is on the statute book. It is particularly unfortunate that that piece of cheap rhetoric will find its way on to the statute book.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The clause is important and will dramatically increase the speed with which we can deport those who have broken our rules and abused our hospitality. There is a degree of automaticity in it that there has not yet been in our judicial system. In particular, it creates a clear link between criminality and a route out of the country. The automatic issue of a deportation order is clear and the appeal must therefore be out of country. It will speed up the system dramatically and send a clear signal to the country and to foreign nationals, so I commend it to the Committee.

Clause 29

David Davies (Conservative, Monmouth)

I beg to move amendment No. 9, in clause 29, page 15, line 4, leave out ‘18’ and insert ‘16’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 115, in clause 29, page 15, line 4, leave out ‘conviction’ and insert ‘offence’.

No. 54, in clause 29, page 15, leave out lines 5 to 7.

David Davies (Conservative, Monmouth)

The point of my amendment is that, in my view and that of the law, 16-year-olds know the difference between right and wrong. For a 16-year-old to get a prison sentence of 12 months—a situation that would have to pertain for them to face deportation—they would have to commit a pretty serious offence, or a large number of moderately serious offences. So, the point of this amendment is fairly simple. Where do the Government think that their priorities lie? Do they think that they lie in looking after the wishes and convenience of a 16 or 17-year-old serious offender who has made it clear that they have no respect for the rules or ways of life of this country? Or do they see it as their priority to protect members of the public who, in many major cities, are facing an onslaught of criminality?

My view is quite simple. A 16 or 17-year-old who knows right from wrong, and who has decided to show no respect whatever for the laws of this country, should not be given the right to remain here. The British public have the right to be protected from them, and would be better off without them.

James Clappison (Conservative, Hertsmere)

I speak in support of the amendment in my name, amendment. No 54, but I also support that of my hon. Friend the Member for Monmouth. My amendment’s purpose is to probe a little more into one exception to what is termed automatic deportation, which is exception 3, where

“the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties”.

My hon. Friend the Member for Ashford has just made some interesting comments about the concept of automatic deportation. The Bill is being presented to us, rhetorically at least, as one that would allow for the automatic deportation of foreign criminals who have committed offences resulting in a sentence of imprisonment of more than 12 months. Setting aside our previous debate on the Government’s interesting interpretation of 12 months imprisonment, there is the question of how big a hole is left by the subtraction of the exceptions contained in clause 29, because it seems that quite a substantial number of foreign criminals who are sentenced to 12 months imprisonment will fall within the exceptions stated there. The two most important, for these purposes, are exceptions 1 and 3. As I have said, my amendment relates to exception 3, but we also have exception 1, where somebody cannot be deported where it would result in a breach of their rights under the European convention on human rights. Given that one of those is the right to family life under article 8 of the convention, one suspects that that particular right under the convention would apply to quite a number of people who were convicted in the circumstances that I just described.

On top of that, all the obligations under the refugee convention would apply to somebody who has claimed asylum, or who is minded to do so following their arrest. Then, on top of those two exceptions, there is the one where deportation would place the United Kingdom in breach of European Community treaties. In this case, it would apply to all foreign criminals whose foreign country is a member country of the European economic area. Reading the Library briefing on this point, we are told that

“in practice EEA nationals and their family members will not be affected by most of the automatic deportation provisions because of the limited circumstances in which European law allows them to be deported”.

Rather than ask how big a hole is created by that exception, I am tempted to ask whether there are any circumstances in which EEA nationals will be deported. Do we simply subtract from the automatic deportation provisions all EEA nationals, together with all the people who can claim rights under the refugee convention or the European convention on human rights, including the right to family life? If one takes all those foreign criminals out of the picture, I submit to the Committee and the world that the term “automatic” is rather a misnomer, as my hon. Friend the Member for Ashford rightly said.

Kerry McCarthy (Labour, Bristol East)

I rise to speak to my amendment No. 115, which relates to exception 2 under the clause, which provides that deportation will not happen

“where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.”

I am concerned by the issue of the date of conviction. I shall leave aside the question of age disputes, which we have addressed previously in the Committee. There is a general rule of the criminal justice system that the age of the offender on the date that the offence was committed is used as a guideline for how they should be sentenced.

It has been a long time since I practised criminal law—nearly 20 years—but my understanding then was that if somebody committed an offence as a juvenile but was convicted as an adult, they could not receive a suspended sentence, because in those days suspended sentences were not given to juveniles. They could receive only the penalties that were available according to their age at the date of the offence. We now have offences, such as possession of a handgun, that incur a minimum sentence of five years’ imprisonment if the offender was over 18 at the time of the offence. If the offender was between the ages of 16 and 18, they could receive only a three-year term of detention. Clearly, the principle is that the age at the date of theoffence governs the sentence that somebody should receive.

Under articles 37 and 40 of the UN convention on the rights of the child, which deal specifically with the rights of children who commit crimes, every person under the age of 18 at the time of the alleged commission of an offence must be treated under the rules of juvenile justice. It may be that the provisions in the Bill are not seen as part of sentencing procedure and that deportation is seen as a separate issue, but I have concerns in that respect.

On a practical level, my main concern relates to what happens as somebody goes through the criminal justice system. There could be a real risk of miscarriage of justice. If, for example, somebody commits an offence when they are a few months under the age of 18, there will be considerable pressure on them to plead guilty, because if they are convicted before their 18th birthday, they cannot be deported. If they choose to fight the case—they might be innocent and want the chance to prove their innocence in court—and are convicted after a trial after reaching the age of 18, they will be deported.

The other side of the coin is that if the police and prosecution service are considering bringing charges against somebody who is a few months short of their 18th birthday, they might think that if they charge them immediately and bring them before the court, they will plead guilty, but if they wait until after their birthday, they can be deported. An incentive to delay could therefore be built into the system.

David Davies (Conservative, Monmouth)

Is the hon. Lady seriously suggesting that the Crown Prosecution Service would deliberately delay prosecutions to get stricter sentences? If so, that cheers me up no end, but I wonder what contact she has had with the CPS recently.

Kerry McCarthy (Labour, Bristol East)

I have not had much contact with the CPS recently, although I did when it was first established, when I was working at a magistrates court. I am not saying that there would be a deliberate intention to slow things down. However, it puts the offender at risk of the vagaries in the system, in that some cases are obviously brought quicker than others. It seems unfair that if somebody is arrested for an offence in an area where the Crown Prosecution Service is quicker at bringing cases to court than in others, they would be treated differently. I know that the Minister has concerns about the difficulty in pinpointing dates of offences, and I understand that that might be why they have chosen to go along the route of using the date of conviction. I know that, particularly in cases such as child abuse, it can be difficult to get the victim of a crime to specify when the offence happened. I understand why it has been suggested that date of conviction should be used instead, but I would be keen to know what safeguards would be built in, so that we do not have an anomaly where people, particularly close to their 18th birthday, might be treated differently.

Crispin Blunt (Conservative, Reigate)

I rise to support the amendment tabled by my hon. Friend the Member for Monmouth. The Committee and the Minister will probably recall the appalling crime that was carried out when a mother was holding her baby at a christening party, and three individuals broke in, and she was shot dead. Those three gentlemen were convicted and were all, as I understand it, in the United Kingdom illegally. Two of them refused to make clear their age to the court, and the judge was not able to ascertain the age of the two defendants who were convicted, one of whom was a father at least once. They also then refused, as apparently they were entitled to do, to take any medical examination to establish their age. The judge then had to deal with them as though they were under 18, having taken some days to consider the matter to ensure that the judgment at which he arrived was going to be proof against any appeal.

My hon. Friend’s amendment would assist future judges finding themselves in that situation. He is absolutely right that defendants over the age of 16 plainly know the difference between right and wrong. It is pretty plain that if people convicted of serious offences, whether they are 16, 17 or 18 or older, are not entitled to be in the United Kingdom, we would not wish them to continue to be here. I strongly urge the Committee to ensure that we can take at least a small step to ensuring that situations such as the one that arose in those circumstances, which are an absolute affront to any sense of justice and an outrage to the relatives and friends of the victim of that disgraceful crime, do not recur, by supporting my hon. Friend’s amendment.

Damian Green (Conservative, Ashford)

I, too, rise to support my hon. Friend’s amendment. The fact that we are discussing exceptions to automatic deportation puts into context what I thought was the Minister’s elegant formulation that there is a degree of automaticity about the deportation under the section of the Bill. I gently point out to him that I think that automaticity is like virginity; either one has it or not. There are no degrees involved. We have not got automatic deportation. The exceptions in clause 29 would be markedly improved by my hon. Friend’s amendment, reducing the age limit of the commission of the offence. It is important, as has been said, that we assume a large degree of personal responsibility in people who are over the age of 16, certainly if they commit the sort of crime that would render them eligible for deportation. Clearly, that would not be some kind of youthful prank of the type that we have discussed on previous clauses of the Bill. I think that in the modern world people would find it unacceptable that the cut-off point should be 18, rather than 16. Of course society as a whole still has a duty of care towards many people under 18, but for many, particularly those with drug problems that may cause mental illness, that duty of care will continue well beyond the age of 18. To that extent it is a question of seeking a cut-off point.

My hon. Friend’s point about those who falsely claim to be under 18 is a powerful one. It would be significantly minimised if the cut-off point were 16. It would be interesting to see whether the use of dental X-rays leads to any improvement. My understanding is that these are still not accurate to within two years. If that is the case, I suspect there will not be much practical improvement with that innovation. A judgment will still have to be exercised by immigration officers, police officers and judges about the age limit. Altogether, I think that the massive argument in favour of a cut-off point at 16 rather than 18 is pretty overwhelming. I hope that the Minister will take this amendment on board in the constructive spirit in which it is intended.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I shall deal with the amendments in turn. They would effectively apply the process of automatic deportation, so obviating consideration for those individuals who are deemed to be 16 or 17, and shift our proposal that the relevant date is not the date of conviction but the date of the offence. The hon. Member for Hertsmere raised some important questions about EEA nationals.

There are two or three issues that need teasing out here. First, as a matter of Government policy our decision has been to continue with the principles set out in 1993 by a Conservative Minister, Charles Wardle, who told the House that it would be the Government’s policy not to remove people until the age of 18. We have said repeatedly that where there are questions about their age we would not remove an unaccompanied child back to a country until we were satisfied that there were adequate reception arrangements in place. The cut-off date between childhood and adulthood is well discussed in legislation, most recently and powerfully in the Children Act 1989 where the initial starting point is 18.

When one has to deal personally with cases such as that raised by the hon. Member for Reigate and one has to drill into the detail and make decisions about what actions the British Government should take, one’s sympathy for the kind of amendment that the hon. Member for Monmouth proposes grows considerably. My concern would be that, because of the conflict with our policy not to remove children without the guarantee of adequate reception arrangements back in their country of origin, it would entail a consideration of each case individually. Our proposal in this Bill is not to remove the sanction of deportation for individuals in these circumstances, it is simply to retain the flexibility to consider cases on a case-by-case basis so that individual details can be examined rather than to trigger the sanction of automatic issue of deportation orders.

Crispin Blunt (Conservative, Reigate)

The Minister said that it would be an exception. To be absolutely clear, there would be an effort to deport 16 and 17-year-olds if there were adequate reception arrangements and this is simply an exception from automaticity.

Liam Byrne (Labour, Birmingham, Hodge Hill)

That is absolutely right.

The second point raised by my hon. Friend the Member for Bristol, East is important, too. This is one of those issues where the balance of justice has to be struck. On the one hand, my hon. Friend posed the risk of perverse incentives operating on the individual if they are not far off their 18th birthday. On the other hand, the more important issue is that we have to be able to pin down a date for an offence. I think that that is best done at the point of conviction, because it provides clarity and certainty. She alluded to certain kinds of offences, whether drug dealing or sexual, and certain kinds of criminals, who have perpetrated an offence over a considerable period of time. My fear is that we end up having wrangles about the appropriate date of the offence to pin down in front of a court, which would slow down and hinder our ability to automatically deport people in cases such as that prayed in aid by the hon. Member for Reigate. I will not go into the case details, but many similarities are relevant here.

Actually being able to pin down a single date of conviction I think is the key. There are issues as to whether perverse incentives are created, but that kind of risk can be combated with other measures, such as using the inspectorate, the Crown Prosecution Service or greater transparency in the system. The greater necessity is for certainty and for people not to be able to avoid justice by creating confusion or complexity over when an offence was committed.

Crispin Blunt (Conservative, Reigate)

I apologize for intervening here, but I want to go back to the original point. The exceptions include breaches of

“a person’s Convention rights,...the United Kingdom’s obligations under the Refugee Convention”

and, under subsection (4), rights “under the Community treaties.” In the circumstances set out by the Minister, subsection (3), unless amended, would leave the United Kingdom in advance of the rights position laid out under the convention and other treaties. He can safely accept the amendment tabled by my hon. Friend the Member for Monmouth, because the position of people in such circumstances is still protected by the wider treaty obligations of the United Kingdom. I do not see why the United Kingdom should have a position in advance of the convention rights and the other international agreements listed among the exceptions.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The individual may face risks, to which children might be especially vulnerable, that are not detected by convention rights. If we are deporting children, we need to be satisfied that there are adequate protections in place in order to avoid deporting a vulnerable person, even though I accept that the individual may have put themselves beyond the sympathy of an ordinary-thinking person because of the offences that they have committed in this country. However, we have obligations to children that merit case-by-case consideration. That is the important point. We are not taking young people or children outside the ambit of deportation. We are maintaining the sanction of deportation; all we are retaining is the ability to consider that case by case. That does not diminish our ambition or intention to deport young people who have committed a serious breach of the law in this country.

I want to turn to the points raised by the hon. Member for Hertsmere, because those too are important. Effectively, we have had to fit the Bill within the framework of European legislation, within which we find ourselves today. The result is that, for EEA nationals, we have to consider cases case by case. As the hon. Member knows—he might be more familiar with European legislation than I am—that imposes certain tests. Those who have been resident in this country for under five years, for example, have to be considered by the Secretary of State through the lens of whether their deportation can take place on the grounds of public policy or public security.

I will be open with the Committee—it is harder to deport EEA nationals than non-EEA nationals. However, the situation has the upside of our ability to negotiate, for example, prisoner transfer agreements between European states. We can, therefore, move European prisoners back to prisons in their own countries substantially easier than those from Jamaica, parts of Africa and parts of the less developed world. That is important because about a third of foreign national prisoners are from an EEA country; I will be corrected by my officials if I am wrong.

Our ability to deport EEA nationals is constrained. There is the upside of prisoner transfer agreements which allow us to move prisoners back to prisons in their country of origin. We took the power to remove the need for prisoner consent for those transfer agreements in the Police and Justice Act 2006. [Interruption.] Sorry, the percentage of EEA nationals in prison is about 5 per cent. of foreign national prisoners.

The framework that we have sought to posit the Bill in, is that which comes from our membership of the EU—a deal done some time ago—and that provided by the transposition of the free movement of persons directive into immigration regulations in 2006.

James Clappison (Conservative, Hertsmere)

My point is on the alleged automaticity of the provisions. Is the Minister saying that the prisoner transfers are those with a deportation order? If they are without one, what is to stop the prisoner coming back to this country at the end of their sentence?

Liam Byrne (Labour, Birmingham, Hodge Hill)

There are grounds on which we can exclude individuals from coming back into the country, but public policy and public security grounds must be proven. I am happy to write to the hon. Gentleman with a more detailed explanation of how those blocks occur. The prisoner transfer agreements are those where individuals are serving a sentence, so we are asking them to serve out their time to society where they came from.

Finally, the transposition of the free movement of persons directive required the approval of the House and was not prayed against when it was laid in 2006. One draws the assumption that it commands the support of all sides of the House. Therefore, it is a constraint, but one that Parliament has imposed.

David Davies (Conservative, Monmouth)

I have listened carefully to the arguments put by the Minister, but think that my hon. Friend the Member for Reigate made the most powerful point today in describing the horror that an excessive regard for human rights legislation can create. The upshot is that people are losing their lives quite unnecessarily as a result.

Stewart Jackson (Conservative, Peterborough)

Is my hon. Friend, like me, concerned at the complacency of the Minister on that issue, given the infamous memo written for the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North about the undesirability of up to 45,000 possible foreign criminals arriving from Romania and Bulgaria from 1 January, given the fact that the Government deliberately exempted themselves from the pilot scheme to share criminal records data among seven other EU countries, as a preliminary step?

Sir David Amess (Conservative, Southend West)

Order. I hope that the hon. Gentleman will not be tempted to respond to that point, which was interesting, but not exactly relevant to the amendment.

David Davies (Conservative, Monmouth)

I am happy to adhere to your advice, Mr. Amess, although it was indeed a very interesting point.

I want to finish by saying that I am in danger of telling too many tales from the front line as a special constable. I was recently involved in an incident involving a foreign national in which various weapons were found. That left me thinking that, although that person was under the age of 18, there is no reason why the law of this country should protect people who walk around with knives and guns and who are prepared to use them. Therefore, it is important to put the amendment to a vote.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 137, in clause 29, page 15, line 35, leave out paragraph (b).

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss amendment

No. 139, in clause 29, page 15, line 38, at end add—

‘(8) The deportation of a foreign criminal is always deemed conducive to the public good, even following the application of an exception.’.

Damian Green (Conservative, Ashford)

Amendment No. 137 disguises the simple question, what is the purpose of subsection (7)(b)? It seeks to delete it, and amendment No. 139 essays another version of it. Clause 29 (7)(b) reads:

“The application of an exception...results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good”.

It is not, on the surface, apparent what that seeks to achieve or what practical effect it would have. That is why amendment No. 139 states that the deportation of a foreign criminal is always deemed to be conducive to the public good. I am sure that there is a simple explanation for that, but I find it puzzling that this House is being asked to enact legislation that will enable it to do something that may or may not be conducive to the public good. I hope that the Minister can put me out of my confusion on that.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I will certainly do my best to help the hon. Gentleman. The subsection aims to make it clear that the legislation will dovetail with the definitions and terms that are used in the Immigration Act 1971, in which the power of the Home Secretary is defined in terms of his ability to exercise certain powers and to deport people if that is deemed to be conducive to the public good. The subsection concerns exceptions that are relevant to the cases of mentally disordered offenders, to whom we might have obligations. For example, it would not necessarily be to the public good to deport a mentally disordered offender who had been committed to an institution and was receiving care. On balance, it might be to the public good for us to continue to care for him until he was better so that he could be returned to his country of origin safely rather than as a rampaging psychopath. We want to reconcile this Bill and the 1971 Act where they relate to circumstances that trigger an exception.

Damian Green (Conservative, Ashford)

I am grateful to the Minister. His explanation clears up some of my confusion and I am happy to beg to ask leave to withdraw the amendment.

Clause 30

Clause 31

Clause 32

Damian Green (Conservative, Ashford)

I beg to move amendment No. 141, in clause 32, page 17, line 8, at end add—

‘(6) An individual detained under subsections (1) and (2) above may not be detained for longer than six months.’.

This is another probing amendment, which was tabled in the same spirit as the amendments to clause 28. It would mean that the Secretary of State could hold a person for only six months after the end of their prison sentence while considering a decision on what the Bill still calls automatic deportation. We hope that it will act as a spur on Ministers to ensure that the extra resources that have already been put into the IND will be enough to ensure that nobody stays in prison for more than six months after the end of their sentence before being deported.

The importance of the provision almost goes without saying for many reasons, among which are, first and straightforwardly, the increasing waste of public money that results from keeping people in prison who should not be in this country; and secondly, and increasingly topically, the effect of the extra overcrowding in an already overcrowded prison estate. That is a problem for the prisoners themselves, as has been shown in several ways in recent months. It also spills over, hugely dramatically and unfortunately, to the immigration removal estate. Only last week there were more disturbances at one of the centres and at the end of last year the Harmondsworth centre was so seriously damaged that it had to be evacuated.

People in the immigration removal service have told me, as they will have told Ministers even more forcefully, that putting large numbers of people who have committed offences that are bad enough to be jailed for into immigration removal centres is extremely bad for all concerned. Inevitably, it makes the centres much more like jails than they would otherwise be and forces those who may have committed only an immigration offence to mix with hardened criminals, which is deeply unfortunate for them. Of course, it is also unfortunate for the staff involved, who are not particularly trained to look after and control such people. For all sorts of reasons, both in the IND and for wider reasons of good order, getting over the crisis of foreign prisoners is one of the most essential tasks that Ministers face. The purpose of the amendment is both to probe and to act as a spur, so that the Bill would state that it is unacceptable simply to keep people locked up while the processes to enable them to be deported are gone through.

As with previous amendments, I am not urging the Minister to do anything that he does not want to do. I am sure that he passionately wishes the amendment was unnecessary because the deportation system was moving so smoothly that there were no problems. Sadly, we know that there are, and that they are continuing. I shall be interested to hear what the Minister has to say.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Again I find myself starting from the same position as the hon. Gentleman. One of the most frustrating aspects of the removal process for many of the individuals to whom I talk in my constituency is that they cannot understand why we cannot put people to whom we have issued deportation orders on a plane, let it take off and touch down in their country of origin, bundle them out of the back and leave them to the tender mercies of the reception staff at the airport.

Stewart Jackson (Conservative, Peterborough)

That is what my constituents ask.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Absolutely. It is often difficult to explain why it is sometimes slightly harder in the real world.

A key part of the removals process is getting people redocumented. I remember being struck by a story told to me by immigration officers at Dover immigration removal centre. As we were going round I asked why people were there for longer than they needed to be, and the officers said that individuals have often embedded themselves in such a web of lies about who they are and where they are from that it is difficult to convince a foreign Government to reissue them a passport so that they can go back home.

One of the key things that we need in our system is incentives to encourage people to co-operate with the redocumentation process so that we can work effectively with foreign Governments and emergency travel documents can be issued to individuals. If somebody knew that they would be released on bail if they strung the process out for six months, we would not strengthen but rather diminish the incentives for foreign national prisoners to co-operate with the documentation process.

David Davies (Conservative, Monmouth)

I do not know how hard the Minister has tried to get foreign Governments to issue passports. Has it not occurred to him that many Governments may be large beneficiaries of aid, and that for a consideration they would probably be more than happy to issue passports or travel documents to people whose names are supplied to them by the Minister’s staff? If the result is that somebody ends up somewhere they did not want to be, the message might go back to others that they should be a bit more truthful when they answer questions.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The relationship between co-operation, migration and international development is a subject that ranges widely not only in government but in the European Union. I, my noble Friend Lord Triesman and Department for International Development Ministers talk about the matter a lot, and I believe that we should be strengthening the links. We will have more to say on that in the months to come.

The amendment would basically free foreign national prisoners once they have been detained for six months. My concern is that that would destroy the incentive for foreign national prisoners to co-operate with the documentation process. I understand the ambition behind the amendment; the hon. Member for Ashford wants to ensure that we do not lock people up for any longer than necessary. I completely agree with that intention. We need more detention space, which is why we are building more, but we also need to increase the throughput rate in our prisons. Many of the changes that the Home Secretary has proposed will help us to achieve those increased rates, but we also need these incentives in place to encourage people to co-operate with the documentation process.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for that response. I hope that his optimism is fulfilled in real life and I beg to ask leave to withdraw the amendment.

Clause 36

David Davies (Conservative, Monmouth)

I originally tabled amendment No. 19 as a probing amendment, because I was not sure of some of the wording in the clause. However, having had further discussions, I have decided not to move it.

Clause 40

Damian Green (Conservative, Ashford)

I beg to move amendment No. 149, in clause 40, page 21, line 46, at end insert—

‘(iii) any other premises that a constable or immigration officer reasonably believes to contain such documents.’.

Sir David Amess (Conservative, Southend West)

With this, it will be convenient to discuss amendment No. 152, in clause 40, page 22, line 16, at end insert—

‘(4A) The individual to whom a document found under the provisions of subsection (1) relates may be liable to be removed from the United Kingdom in accordance with the provisions of the Immigration Acts.’.

Damian Green (Conservative, Ashford)

The Bill gives police and immigration officers the power to enter and search properties for nationality documents, although that power is limited to where the suspect was arrested or to

“premises occupied or controlled by the individual”.

The amendment seeks to extend that scope to premises where a constable or an immigration officer “reasonably believes” that the documents might be held. So its purpose is to help the Government and help the enforcement procedures that will be instituted by the Bill, by granting the police and immigration services a modest extension of powers. As the Minister will be aware, we wish that there was not a distinction in this case between the police and the immigration services; but that is a debate that we have had and will no doubt return to.

What is particularly important about the amendment is that it is at least possible, and in the case of organised illegal immigration it is arguably probable, that people would keep nationality documents away from the place that the police would be most likely to find them. We are aware that the majority of those people who come here illegally have been trafficked here; therefore, they will have knowledge of the criminal gangs that are trafficking them. I think that in previous debates we have been in agreement on the principle that the organisers should be the main focus of police investigations. It seems quite likely that, for instance, a collection of passports or other documents might well be held on some other premises by the person who is most intimately involved with the trafficking operation.

One could easily envisage huge frustration on the part of investigating officers if they find that they are only allowed to search some premises when they reasonably suspect that all the evidence is being kept on other premises. That is not a theoretical construction. It is easy to imagine such a situation. There are other situations that one can easily imagine in which a suspect reveals something under interrogation that would send police officers in another direction, looking in other areas for the relevant piece of evidence. The amendment seeks an extension of powers; we are not universally in favour of such extensions, but this one seems to be practical and useful.

Amendment No. 152 would mean that individuals who have had their documents seized might be subject to deportation under the Asylum and Immigration Act 1999. The purpose of the amendment is to clarify whether those who are arrested and potentially charged under the provisions of the Bill are subject to deportation procedures from the UK by virtue of having committed crimes that are covered by the clause. It is a probing amendment because I assume that that would be the intent of the clause, but it is not clear to us that that would be the effect. I should be grateful for clarification.

Joan Ryan (Labour, Enfield North)

This power will assist us in ascertaining or confirming the nationality of persons in order to consider cases liable for deportation, which refers to the hon. Gentleman’s second amendment. It is part of our plans for improving the effectiveness of handling foreign nationals within the criminal justice system and it will affect persons arrested for criminal offences, so that their nationality can be established at an earlier stage. That will be when they first enter the criminal justice system. It will be achieved by immigration officers and the police having the power to search premises for documents relating to nationality or identity where a person has been taken to a police station following their arrest for a criminal offence. It applies to persons who are suspected of not being British citizens and where relevant documents may be found on the premises. Safeguards will be put in place to ensure that that power is not applied disproportionately, and inquiries will be made to see whether the individual is already know to the IND before a search is instigated. Searches will be necessary only where an individual fails to co-operate in establishing his or her identity, or the officer has reasonable grounds to believe that he is not telling the truth. The power of search will be exercised by a constable or an immigration officer only after authorisation by a senior official, who must give written authority for the use of the power. We are proposing to operate a pilot in one or two police areas to test operational details. Any disproportionate impact will be identified by the pilot and addressed.

I can say to the hon. Gentleman in relation to his amendments that the conditions and restrictions contained in clause 40 are intended to ensure that the power to enter premises in order to search for nationality documents is proportionate. Although I think that it is useful to talk about the scope of those powers, and how wide they may or may not be, we feel that it is unnecessary and potentially disproportionate under article 8 of the European convention on human rights to widen the power to enter and search premises for relevant documents to “any other premises”.

Damian Green (Conservative, Ashford)

I take that point, and I explained that I was trying to probe. However, the scenario that I gave seems extremely likely. If it can occur to me, no doubt it can occur to the sort of people who engage in people trafficking that if they remove all the evidence to a different location, they will have solved one of their problems as a criminal. That seems both likely to happen and hugely damaging to police investigations. Could the hon. Lady provide some comfort on how the police will get around that fairly obvious criminal practice?

Joan Ryan (Labour, Enfield North)

It is unnecessary and disproportionate because relevant identity documents are more likely to be found at the home of the individual arrested, or where the individual was when arrested. However, in cases where a person is not a British citizen and may be liable to be deported, in principle, where the Secretary of State has deemed their deportation to be conducive to the public good, or where the person has been recommended for deportation by a court following conviction for an imprisonable offence, such persons may be liable for deportation even if they do not fit the threshold in criteria set out in our clauses on automatic deportation.

In amendment No. 152, the hon. Gentleman asks about the purpose. That is, indeed, to be able to facilitate deportation at an appropriate time by ensuring that when they enter the criminal justice system we are able to establish at an early stage the nationality of an individual who is suspected of not being a British citizen. Clause 40 gives powers to search for nationality documents but does not have bearing on powers for deportation, whether they exist under this Bill or not. This is about establishing nationality where necessary so that deportation can take place in appropriate cases at a later stage.

On amendment No. 149, we feel that a decision has to be taken about how proportionate the power is, and about what evidence there is of the need to widen that power. The evidence is that the scope of the power as drafted will be appropriate and proportionate, but I also point out to the hon. Gentleman that, following legislation, we intend to run a number of pilots. Clearly, that will be instructive on how these powers and their use are working operationally. Should there be an issue about scope, I am sure that we will acquire information from those pilots that could be looked at again in future. However, on the clause before us, we are convinced that we have got it about right in terms of the proportionality of the power and in terms of ensuring that we meet our responsibilities under article 8 of the ECHR.

I have addressed the amendments, which I understand are probing amendments. I also understand the hon. Gentleman’s concern that we are able to search appropriately for evidence of nationality; like him, we understand the importance of acquiring that evidence as early as possible so that deportation, if appropriate, is also possible later in the process. With that, I hope that the hon. Gentleman is able to withdraw his amendments.

Damian Green (Conservative, Ashford)

I am grateful to the Under-Secretary for that explanation, and I hope that she will go away and look at this again. She said that she believes that these documents are most likely to be found at the address of the person to whom they directly relate, but I put it to her that that will not be the case if the legislation were passed in this way—because that will be the only place where the police are allowed to investigate. One does not need a great criminal brain to work out that if one leaves the evidence somewhere else, and the police are not empowered to investigate it, one is less likely to be caught. For practical reasons, I hope that Ministers will reconsider the powers of the police and immigration officers in that regard. The Bill contains an enormous loophole, and nothing that the Minister has said persuaded me that its existence has been adequately addressed. Nevertheless, for the time being, I beg to ask leave to withdraw the amendment.

Schedule

Liam Byrne (Labour, Birmingham, Hodge Hill)

I beg to move amendment No. 116, in schedule, page 25, line 4, at end insert—

‘Race Relations Act 1976 (c. 74)

Section 19E.’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following: Government amendments Nos. 117 to 119.

Government new clause 6—Border and Immigration Inspectorate: Establishment—

‘(1) The Secretary of State shall appoint a person as Chief Inspector of the Border and Immigration Agency.

(2) The Chief Inspector shall monitor and report on the efficiency and effectiveness of the Border and Immigration Agency; in particular, the Chief Inspector shall consider and make recommendations about—

(a) consistency of approach within the Border and Immigration Agency,

(b) the practice and performance of the Border and Immigration Agency compared to other persons doing similar things,

(c) practice and procedure in making decisions,

(d) the treatment of claimants and applicants,

(e) certification under section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (unfounded claim),

(f) compliance with law about discrimination in the exercise of functions, including reliance on section 19D of the Race Relations Act 1976 (c. 74) (exception for immigration functions),

(g) practice and procedure in relation to the exercise of enforcement powers (including powers of arrest, entry, search and seizure),

(h) the provision of information,

(i) the handling of complaints, and

(j) the content of information about conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration and asylum, to immigration officers and other officials.

(3) In this section “the Border and Immigration Agency” means—

(a) immigration officers, and

(b) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality.

(4) The Chief Inspector shall not aim to investigate individual cases (although this subsection does not prevent the Chief Inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering a general issue).’.

And the following amendment thereto: (a), Leave out subsection (4) and insert—

‘(4) The Chief Inspector shall have the power to investigate individual cases.’.

Government new clause 7—Border and Immigration Inspectorate: Chief Inspector: supplemental.

Government new clause 8—Border and Immigration Inspectorate: Reports—

‘(1) The Chief Inspector shall report in writing to the Secretary of State—

(a) once each calendar year, in relation to the performance of the functions under section [Border and Immigration Inspectorate: Establishment] generally, and

(b) at other times as requested by the Secretary of State in relation to specified matters.

(2) The Secretary of State shall lay before Parliament a copy of any report received under subsection (1).

(3) But a copy may omit material if the Secretary of State thinks that its publication—

(a) is undesirable for reasons of national security, or

(b) might jeopardise an individual’s safety.’.

And the following amendment thereto: (a), after ‘State’, insert ‘and the Information Commissioner’.

Government new clause 9—Border and Immigration Inspectorate: Plans.

Government new clause 10—Border and Immigration Inspectorate: Relationship with other bodies: general.

Government new clause 11—Border and Immigration Inspectorate: Relationship with other bodies: non-interference notices.

Government new clause 12—Border and Immigration Inspectorate: Abolition of other bodies.

Government new clause 13—Border and Immigration Inspectorate: Prescribed matters.

Government new clause 14—Senior President of Tribunals.

Liam Byrne (Labour, Birmingham, Hodge Hill)

These amendments and new clauses form an important part of the reforms set out by my right hon. Friend the Home Secretary last July in the IND review, which included a trinity of principles for the reform of the IND. The first was that it should operate as an arm’s length agency, with greater operational freedom from the Home Office. [Interruption.] We are all Catholics at the Home Office.

Secondly, we said that rather than having a monolithic mode of operation the IND should be much more regionalised, so that its offices and personnel could work more closely with individuals in police forces, local authorities and other parts of Government that are constructed on a local basis. We should have a closer relationship than we do with the communities that we serve.

The amendments and new clauses are the third part of that story. I said clearly that I thought that the way in which the IND was inspected, held accountable and rendered transparent was not robust enough, and that we would have to change things if we wanted to set it on a path of sustainable long-term reform and progress. I do not think that 11 different inspectorates and agencies looking over the IND’s business are powerful enough. We need fewer, more powerful organisations, able to look more closely and more forensically at the IND, so as to report to the Secretary of State, to this House and to local communities on how it is doing nationally and in those communities.

Consequently, we launched a consultation on 18 December 2006. I regret that it was not possible to provide the relevant clauses to this Bill on Second Reading, because it would have been helpful to debate them. However, we were caught between doing that and needing to conduct a thorough consultation with the public before introducing them. I signalled that the clauses would arrive and I regret that they were not available in time.

The consultation paper was favourably received. The consultation closed on 16 February and the Government provided their response on 1 March, along with a written ministerial statement. I am glad to say that, like other consultations that we have launched in the past 12 months, this one was wildly popular, with 92 per cent. of respondents in favour of the arrangements that we proposed. In particular, 94 per cent of respondents said they wanted the overall efficiency and effectiveness of IND to be the subject of inspection. Ninety-three per cent said they wanted to see the quality of decision making included within the ambit of the inspectorate and 86 per cent said they wanted to see the use and the IND’s operation of enforcement policy within the ambit of the inspectorate as well.

The debates we have had over the last couple of weeks in this Committee Room have lent further argument to the need to include a much more robust inspection of enforcement than we have today within the ambit of a much more powerful regulator.

There are, however, a number of fields of operation which we propose to exclude from the work of the inspectorate simply because we already have effective, well established arrangements in place and, to some extent, debates which are already on the record about whether those inspectorates should be dissolved and reconstituted with others. In particular I mean detention, where we propose to preserve the role of Her Majesty’s chief inspectorate of prisons, where we intend to preserve the role of the prison and probation ombudsman and where we intend to preserve the role of independent monitoring boards.

I would like to place on the record the debt of gratitude that I and the Home Office owe to independent monitoring boards, in particular at the moment when there are a higher number of foreign national prisoners in our estate than we have experienced before. I rely extensively on the feedback that we receive from IMBs. When I met the chair of IMB at Campsfield on Thursday night last week I was again struck by the dedication and concern that many people who serve with IMBs give to their work. We are very lucky to have their help.

We also intend to preserve the advisory board on nationality and immigration. This is the group of individuals who advise us on the way in which we conduct our work in the field of citizenship and nationality. For the time being at least we intend to preserve the work of the entry clearance monitor who looks after and inspects the operation of the IND’s or rather UKvisas’ business abroad. Before any proposals are brought forward in relation to the entry clearance monitor we need slightly more time for consideration than we have been given today.

The second category—this is the subject of the hon. Member’s amendment—of exclusions that we propose is the exclusion of consideration of individual cases. I do not think that foreign nationals in this country are short of judicial protection or judicial regimes to investigate the merits of their case. The parliamentary and health service ombudsman provides a way of looking at individual cases and the way in which the IND conducted the review of them.

The proposals that we are bringing forward, therefore, are not any kind of constitutional revolution, as Opposition Members will be pleased to hear. They are modelled on proposals that are tried and tested and found to work. In particular they are modelled on the proposals that are already in place for HMIC, HMCIP, the courts and administration inspectorate, the CPS inspectorate and the inspectorate of probation, all of which were covered in the Police and Justice Act 2006 and which were the subject of debate in this House.

Broadly we are asking the new inspectorate to take on a general duty to monitor and report on the efficiency and the effectiveness of what will become the new border and immigration agency. It will review the treatment of claimants and applicants to ensure consistent decision making across the board. For the first time there will be comprehensive inspection of the use of enforcement powers by immigration officers, including—this is important given the debate we have had in this Committee—the powers of arrest, the power of entry, the power of search and the power of seizure. It will look further at the information that is provided to applicants by the border and immigration agency to applicants and at the information that is provided to the general public. It will inspect the processes by which the agencies handle complaints. It will make comparisons with other bodies that are undertaking similar work. It will look at the way the Home Secretary exercises his power of certification under section 94 of the Nationality, Immigration and Asylum Act 2002. It will look at the quality of inspection and country of origin reports that are provided and used by the border and immigration agency.

Beyond this—again this is important, given the debates we have had to date in this Committee—it will take on an enhanced role, looking at the way in which the IND complies, not only with section 19D of the Race Relations Act 1976, which covers the way in which ministerial exemptions are given under immigration powers for provisions in the Race Relations Act, but it will look more widely still at the way in which the IND is operating its business in accordance both with the ambitions and the spirit of that Act and the letter of the law.

In conclusion, the IND is an agency that will benefit from the disinfectant of sunlight. The people of this country have a right to know how well the immigration service is working on their behalf. That is an important way in which we can raise the country’s confidence in the immigration service. The inspectorate should have the opportunity to respond not just to the Secretary of State, but to Parliament and to prescribed people under an order-making power, which we set out. We ask that the inspectorate co-ordinate their activities with others, including the senior president of tribunals, to ensure that they do not step on each other’s toes when it comes to the operation of tribunals. It is an important step forward on the road to reform and I commend it to the House.

Damian Green (Conservative, Ashford)

Let me start with something on which I suspect the Minister will be in agreement. This is one of the most important parts of the Bill and so I regret that the Committee is unable to have the wisdom of the Liberal Democrat Benches. They took the trouble to raise a point of order on the Floor ofthe House yesterday about the effects of this part of the Bill, but sadly they have not chosen to be here to debate it this morning. I am sure that their contribution would have been very useful.

The Minister talked about the trinity of reforms, perhaps casting an unnecessarily holy glow over the Home Secretary’s proposals in this area. But it is one to which I naturally respond, as I am sure you do, Mr. Amess. The Minister’s use of language is either peculiarly appropriate or inappropriate, depending on where one comes from. His explanation of regionalisation left me even more perplexed about why he is going down that route—[Interruption.]

Sir David Amess (Conservative, Southend West)

We are very patriotic in this Committee, but I ask the hon. Member for Monmouth to turn off his mobile.

Damian Green (Conservative, Ashford)

I feel that that is a mobile that deserves a wider audience than just this Committee. I am sure that there are parts of Monmouth where anthems other than “Land of Hope and Glory” may be heard.

The Minister explained that this measure was part of the reforms that went along with regionalisation and that it would help the IND better to co-ordinate with local police forces.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Amongst others.

Damian Green (Conservative, Ashford)

Amongst others, none of whom is particularly relevant on a regional basis. I am glad that we have had that explanation from the Minister. I have thought all along that regionalisation was a huge diversion from the reforms that were needed in the IND. The Minister’s comments this morning rather confirmed that. What is needed is better co-ordination. I have no problem with the Minister’s general point that having an independent inspectorate, rather than the mixture of inspections to which the immigration service is subject at the moment. It is perfectly sensible. Our problem with parts of these amendments and new clauses is where they fall short of that ambition.

There are two amendments in the group in my name. The first one, which the Minister dealt with, is about whether the chief inspector will have the power to investigate individual cases. One of the more disingenuous parts of the Minister’s remarks on the Bill was when he appeared to imply that my amendment would give more protection to individual foreign nationals, who he said already had enough protections. By contrast, the purpose of allowing the chief inspector to investigate individual cases is to improve his or her ability to do the job of delving into the darker corners of the IND, where the really serious scandals often emerge. The purpose of the amendment is to reverse what is in the clause now and to give the inspector specific power to investigate individual cases.

Throughout the course of our deliberations on the Bill we have praised the professionalism and dedication of those who work in the immigration service. We were right to do so, but we all know that from time to time things go wrong. Things particularly go wrong at Lunar house; we have seen a succession of scandals there, involving all sorts of deeply unpleasant corruption, of which the most vivid was the sex-for-visas scandal. It seems very strange to set up a new inspectorate because the Minister wanted, he said, to apply the disinfectant of sunlight—I think that was today’s soundbite—to the administration over which he presides, but then to say that that particular disinfectant cannot be used on some of our most toxic cases, which are the individual scandals that happen. If so, he will produce an inspectorate that is not able to inspect what they ought to be inspecting, because he will know that many of the worst examples of the manifold problems that the immigration system face are often exposed by the individual case.

I should point out that we are proposing to empower the chief inspector to inspect every case, but not to mandate him to do so, because that would clearly involve overload and prevent the inspector from doing all the other desirable things that we would all want him to do. Without the power to investigate individual cases, the chief inspector will be hobbled, not be able to do the job and, more importantly therefore, not be a suitable tool for Ministers to improve the Department. It would be a huge shame if one possible method to enable Ministers to do their job properly does not come into force in the proper way because of drafting which at best is short-sighted and at worst is actually attempting to set up an inspectorate designed not to inspect too much that might be embarrassing for the political masters of the officials who might have made the mistakes or, even worse, committed the crimes such as we have seen happen inside the IND.

The Minister also talked about improving public confidence—I think—which is a good, neutral phrase, since public confidence is clearly at such a low ebb. He will know as well as I do that nothing serves public suspicions of cover-ups or fuels feelings that complaints are not being taken seriously like a series of internal inquiries. That is a longstanding bugbear with Whitehall. Here is an opportunity to get away from the culture of the internal inquiry. Almost whatever conclusion such an inquiry comes to, it is always dismissed by the sceptical as a whitewash, because there is no sign of independence. For the most serious cases, I strongly urge the Minister that the chief inspector ought to have the power to investigate individual cases.

The Minister does not have to look far to see an inspectorate that works well. I commend Lord Ramsbotham, the former chief inspector of prisons, as an example of how to be an inspector in a way that makes waves and causes ructions and problems, of course, but leads to the long-term exposure of problems and therefore to the long-term improvement in the quality of the service. Lord Ramsbotham did not sit behind a desk, look at statistics and take an overview, he went out and did a lot of work in individual prisons. It is the ability to get out and look at individual cases and to draw conclusions from them that will make an inspectorate successful. Amendment (a) to new clause 6 is extremely important, as it would help us to further the hope that both sides of the Committee share that the inspectorate will prove to be as significant and challenging as we believe it should be.

My second amendment, to new clause 8, is equally important because it attempts to ensure that the procedures are as open as possible. Under the new clause as drafted, the Secretary of State can delete material from the chief inspector’s report to Parliament if he considers that it would call into question the safety of an individual person or constitute a threat to national security. Those are reasonable, underlying desires; the amendment would insert some independence into the judgment of what should be deleted. It would ensure that the Information Commissioner considered it and thus obtained an outside view of whether deleted material had been deleted for proper reasons, such as those of national security, for example, or for less proper reasons, such as avoiding embarrassment to Ministers.

In principle, new clause 8 is a good proposal. We have argued repeatedly in our discussions that Ministers should report to Parliament on the effects of the Bill and part of me welcomes their late conversion to that principle. The amendment, like the previous one, would make that reporting effective rather than half-hearted.

The Home Secretary is clearly not the only person who can make judgments on whether a person’s safety might be in danger or, indeed, whether national security would be affected. The Minister may argue that the Information Commissioner is not the right person for that purpose, and we would be happy to table amendments at a later stage to insert someone else. The amendment would establish the principle that the person must be somebody independent, who does not rely on the Home Secretary for his appointment, who is not part of the Whitehall machinery and who can take a view on whether the important material contained in the chief inspector’s report should not be pre-censored by the Home Secretary.

I can tell the Minister now that if the report has to go through a Home Office filter before it is published and, for whatever good reason, some material is deleted, there will be an enormous amount of public cynicism about the ultimate value of the chief inspector’s report. If Ministers are sincere in their desire not just to allow some sunlight into this matter but also, in the long term, to improve the workings of the system, which is just as important, they should be prepared to take along the way the lumps of the individual problems that the chief inspector has reported. The slightest suspicion that the chief inspector is being censored will be hugely damaging to that confidence-building measure and to the process of finding people of the appropriate calibre to work for the inspectorate. I urge the Minister to be bold, and not to try to over-respond to the culture of secrecy that too often comes from inside Whitehall Departments, and to accept that if he wants to let in the sunlight, he must do so properly. He has to allow some independent body to look at what material is being taken out of the chief inspector’s report.

The overall purpose of the amendments is to ensure that the reality of what appears in the legislation lives up to the rhetoric that the Minister has put behind it. He says that it will be important and an opening up of the system. It is possible that that will be the case, but that will be much more likely if the two important changes are made: the chief inspector should be given the power to investigate individual cases, if he wants to; and somebody other than the Home Secretary has the ability to decide whether information should be deleted from the annual reports of the chief inspector. Both the amendments would markedly improve this part of the Bill, and I commend them to the Committee.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am very grateful for the welcome, however sceptical, that the hon. Gentleman has offered. I should like to make a couple of points in response. I hope that he will accept that the underlying principle of my response is that having set up the inspectorate, we do not want it to be snowed under with applications for those who are seeking simply to frustrate their removal from this country with further applications and appeals in order to slow down the deportation process. We want to be absolutely clear that if people are to be deported, if they have the right to appeal it will go to the immigration appeal tribunal, where judgments are made. That will be the end of the line. We do not want people to see the inspectorate as something else to which they can apply to delay in some way their removal from the country where that is the right outcome. I am sure that that is not the wish, intention or ambition of the hon. Gentleman, but I think that he would accept, in reflective moments, that that is indeed a risk. The point that he makes is important, particularly when it comes to the issue of corruption. We have sought to provide sufficient powers for the chief inspector to do precisely what he is seeking. For example, we empower the chief inspector to carry out ad hoc investigations, and where necessary to carry out unannounced inspections. That is important.

In new clause 6(4), we say that although the chief inspector should not aim to investigate individual cases—we do not want the investigation of individual cases to be the inspector’s day job—we are quite clear in parentheses that that subsection does not prevent the chief inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering the general issue. The intention that sat at the heart of the comment made by the hon. Gentleman was about how the chief inspector was able to have sufficient insight into individual cases so that he or she might be able to draw general conclusions about the state of the IND’s business and report to the Secretary of State, the House and local communities. I will study the hon. Gentleman’s remarks very carefully. I think that I understand where he is coming from. I do not think that he wants to put more barriers to removal, but to ensure that the inspector has sufficient power to look at individual cases and learn from them, which has a more general application. I will seek to ensure that new clause 6(4) gives us the ability to do that.

The second issue, however, is the Information Commissioner. It is important, as a matter of principle, that we do not get ourselves in a situation in which we are snowing the Information Commissioner from across Government with a range of information reports, which he or she must approve a priori, before their release into the public domain. There is already a reasonably robust process by which people can apply to the Department to ask for information about omissions. If they are not satisfied with the response, they can apply to the Information Commissioner who can investigate. The Information Commissioner can, and often does, insist on disclosure under the Freedom of Information Act. There is a genuine point of efficiency regarding whether the Information Commissioner should sit before the report or operate a process after its issue. I also accept that there are issues that have to be balanced with confidence and disclosure.

The comments of the hon. Member for Ashford are extremely helpful. I think that I have caught the tenor of his remarks and will ensure that we have got the provisions in line with them, as far as is possible.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for those remarks but do not find them entirely satisfactory in either case—although the first set were better than the second. However, it is not my reading of subsection (4) of new clause 6 that it will encourage the investigation of individual cases by the chief inspector. I made it clear in my original remarks that the chief inspector should not spend most of his time dealing with individual cases. The Minister says that people might bombard him with their individual cases as a means of delaying their removal from this country. Of course that is undesirable, but as it will be the chief inspector’s decision as to which individual cases he chooses to take up, that simply would not happen—they would be automatically dismissed.

The drafting of subsection (4) is extremely careful. It begins:

“The Chief Inspector shall not aim to investigate individual cases”,

which seems to be a fairly strong instruction to any inspector that that should not be what he does. It then says that,

“this subsection does not prevent the Chief Inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering a general issue”.

It should be for the chief inspector to decide what is an important general issue, on the basis of an individual case. Very occasionally, the case itself might be the issue—if indeed there are visas on sale for sex at Lunar house, as it has been accused of and as has been reasonably well attested. Even if there is only one person doing that, it is a general issue.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am following the remarks of the hon. Gentleman carefully and repeat my offer to examine his remarks and check that new clause 6(4) is in line with his ambitions, which I think I share. On that specific example, under new clause 6(2)(c),

“the practice and procedure in making decisions”

is obviously a general issue, which he is talking about. The ability of a chief inspector to look at individual cases in the context of a general issue is, therefore, very clear. The chief inspector has the power to look at specific cases and it is quite obvious that the example that the hon. Gentleman prays in aid is precisely,

“the practice and procedure in making decisions”.

The way that subsection (2)(a) to (f) is drawn is rather wide.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for that attempted clarification but it makes my case stronger—chief inspectors should not be enjoined in this way from taking a decision that he or she should be able to take. It seems to strengthen the argument that subsection (4) should not be part of the new clause—quite apart from all of the points that I have already made—because it might be seen as contradicting subsection (2). I hope that the Minister can take that away and I give notice that I intend to press the amendment in the hope of improving his thought processes.

Eric Illsley (Labour, Barnsley Central)

I remind the Committee that with this we are taking the following: Government amendments Nos. 117 to 119.

Government new clause 6—Border and Immigration Inspectorate: Establishment—

‘(1) The Secretary of State shall appoint a person as Chief Inspector of the Border and Immigration Agency.

(2) The Chief Inspector shall monitor and report on the efficiency and effectiveness of the Border and Immigration Agency; in particular, the Chief Inspector shall consider and make recommendations about—

(a) consistency of approach within the Border and Immigration Agency,

(b) the practice and performance of the Border and Immigration Agency compared to other persons doing similar things,

(c) practice and procedure in making decisions,

(d) the treatment of claimants and applicants,

(e) certification under section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (unfounded claim),

(f) compliance with law about discrimination in the exercise of functions, including reliance on section 19D of the Race Relations Act 1976 (c. 74) (exception for immigration functions),

(g) practice and procedure in relation to the exercise of enforcement powers (including powers of arrest, entry, search and seizure),

(h) the provision of information,

(i) the handling of complaints, and

(j) the content of information about conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration and asylum, to immigration officers and other officials.

(3) In this section “the Border and Immigration Agency” means—

(a) immigration officers, and

(b) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality.

(4) The Chief Inspector shall not aim to investigate individual cases (although this subsection does not prevent the Chief Inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering a general issue).’.

And the following amendment thereto: (a), Leave out subsection (4) and insert—

‘(4) The Chief Inspector shall have the power to investigate individual cases.’.

Government new clause 7—Border and Immigration Inspectorate: Chief Inspector: supplemental.

Government new clause 8—Border and Immigration Inspectorate: Reports—

‘(1) The Chief Inspector shall report in writing to the Secretary of State—

(a) once each calendar year, in relation to the performance of the functions under section [Border and Immigration Inspectorate: Establishment] generally, and

(b) at other times as requested by the Secretary of State in relation to specified matters.

(2) The Secretary of State shall lay before Parliament a copy of any report received under subsection (1).

(3) But a copy may omit material if the Secretary of State thinks that its publication—

(a) is undesirable for reasons of national security, or

(b) might jeopardise an individual’s safety.’.

And the following amendment thereto: (a), after ‘State’, insert ‘and the Information Commissioner’.

Government new clause 9—Border and Immigration Inspectorate: Plans.

Government new clause 10—Border and Immigration Inspectorate: Relationship with other bodies: general.

Government new clause 11—Border and Immigration Inspectorate: Relationship with other bodies: non-interference notices.

Government new clause 12—Border and Immigration Inspectorate: Abolition of other bodies.

Government new clause 13—Border and Immigration Inspectorate: Prescribed matters.

Government new clause 14—Senior President of Tribunals.

Damian Green (Conservative, Ashford)

When we adjourned, I was dealing with my amendment to new clause 8 and specifically with the Minister’s reason for thinking it unnecessary for the Information Commissioner to have some kind of oversight of material that should be deleted from the report given to Parliament by the proposed new inspectorate. I was about to say that I found his explanation somewhat unconvincing. It appeared to rely on the fact that rather than have the Information Commissioner exercise some kind of oversight in advance, it would always be possible for him to do so after the publication of the report.

That is simply implausible. By definition, the material that had been kept out by the Home Secretary would, at least on the surface, have been kept out for reasons either of the personal security of individuals or of national security. In that case it is hard to see how in practice the Information Commissioner would have access to that information, still less that anyone could make a successful freedom of information request that might trigger some activity by the Information Commissioner. I just did not follow why the Minister thought that that would be an effective second line of defence of the ability to scrutinise the material that the Home Secretary thought was unsuitable to be given to Parliament. As with my amendment to new clause 6, I hope to press my amendment to new clause 8 to a vote.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful to the hon. Gentleman for his amendments. They have given us the opportunity to explore one or two issues in some helpful detail. My concern remains that the new arrangements that we are putting in place can conduct their business efficiently and effectively, without being drowned by bits of paper from Government Departments seeking pre-clearance from the Information Commissioner before we put things into the public domain, particularly where they relate to issues of personal security or national security. On the other hand, I do not want the new regulator to be snowed under with cases put up by people who are simply trying to avoid removal or deportation from this country. We are broadly in a similar place. I will reflect on his comments before thinking through whether further Government amendments should be brought forward. I understand that the hon. Gentleman wants to press the amendments to a vote in order that I do not forget that point.

Eric Illsley (Labour, Barnsley Central)

The two amendments to new clauses 6 and 8 will come later in our proceedings.

Clause 44

Damian Green (Conservative, Ashford)

I beg to move amendment No. 108, in clause 44, page 23, line 19, after, ‘17’ insert ‘and section 27’.

The amendment is designed to make the Bill more effective in one of the areas where I think there is no division on either side of the House and indeed it may be particularly appropriate that we debate this while in the Chamber we debate the bicentenary of the abolition of the slave trade. This amendment would make it easier and certainly quicker to attempt to stamp out the modern form of slavery which is people trafficking.

The effect of this clause is to add to the commencement section of the Bill section 27, the offences that relate to people trafficking. As currently drafted, only clause 17 of the Bill, support for failed asylum-seekers, comes into force the day the Bill becomes an Act. What we seek to do is to add a reference to section 27 so that we can get a move on with attacking people trafficking.

Everyone on the Committee has participated in debates about the despicable practice of people trafficking. The Government have signalled their intention to tighten up the law, indeed to sign the Council of Europe convention that will enable them to do so, and we welcome that and we support them in that move.

The Minister will recall that when we discussed our amendments to clause 17 we were keen that this House should send a very clear message that we are all serious about toughening up the law and we think that this amendment is a very clear and easy way of doing that. It would ensure that the provisions relating to people trafficking are brought in at the earliest opportunity. We believe this would act as a deterrent and it will also enable the conviction and punishment of as many people traffickers as possible. I am sure the Minister will agree that the sooner we can start on that course of action the better.

The earliest opportunity to start doing that is the day this Bill passes on to the statute book and that is what this amendment would achieve. I hope therefore that it will be regarded sympathetically by the Government.

John Hemming (Liberal Democrat, Birmingham, Yardley)

The amendment seems very sensible and one which I am sure the Government will support.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I did indeed look upon this amendment with a great deal of sympathy because I think the Committee has been united in the debates we have had on this subject over the last few weeks. There has been a very clear determination that the law in this area needs to be strengthened. I therefore sought some strong arguments as to why we should not accept this amendment. Only one thing swayed my mind and there is only one reason that I therefore ask the hon. Member for Ashford to consider withdrawing this amendment.

The advice that I have received is that there is a risk—a small risk but a risk none the less—that the courts would potentially not look favourably on our attempts to prosecute under this offence if we did not observe the convention of seeking a brief interlude in which to publicise the fact that this new offence had been introduced.

I am told that it is usual to bring in offences after a period of two months. I do not want to risk—and I am sure nobody on this Committee would wish to risk—any potential prosecution for an offence such as this going wrong because we did not observe this protocol. If the risk is there we should be alive to it. My concern is that when this offence is introduced we are able to maximise the effectiveness of our prosecutions using this offence. If there is a risk that puts that potential in jeopardy, I think I should accept that advice. Therefore I ask the hon. Gentleman to withdraw the amendment because the argument that has been put to me is that there may well be no interlude in which we can publicise—

John Hemming (Liberal Democrat, Birmingham, Yardley)

Will the Minister give way?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I will not give way.

—publicise this offence and therefore if prosecutions may be in jeopardy I think the amendment should be withdrawn. The brief interlude of two months is not a big time period. If it allows us, however, to increase our chances of successful prosecutions, I think we should take it.

Damian Green (Conservative, Ashford)

I find that explanation quite extraordinary. It is not clear why that convention has built up—if it has built up. I confess that in my 10 years in this House I have never heard that explanation for delaying commencement. I fully accept that the Minister will have been given that advice—although I sense that he is taking it with extreme reluctance.

It seems that the courts could put prosecutions in jeopardy because an offence had not been sufficiently publicised. I am not a lawyer, I am glad to say, but one of the clichÃ(c)s to which I cling is that ignorance of the law is no excuse. There will be huge tracts of the statute book about which Committee members know nothing, but none of us would be able to say “Well, the prosecution should not happen because I did not know I was breaking the law.” In this instance, the people who will be terribly inconvenienced by discovering that they were breaking a law that they did not know existed will presumably be people traffickers. Inconveniencing them should be fairly low on any sensible person’s list of priorities.

I find the Minister’s explanation extraordinary. Nevertheless, I have no wish to jeopardise the prosecution of such people, so I accept the Minister’s advice.

Crispin Blunt (Conservative, Reigate)

Why?

Damian Green (Conservative, Ashford)

I find it extremely unlikely that prosecutions could be jeopardised, but I have to take what the Minister says in good faith. I have no doubt that the best legal brains in his Department have advised him that it could put prosecutions in jeopardy. I have no wish to do that. With deep and extreme reluctance, I beg to ask leave to withdraw the amendment.

Clause 45

Liam Byrne (Labour, Birmingham, Hodge Hill)

I beg to move amendment No. 29, in clause 45, page 24, line 3, leave out ‘Sections 1 to 4 and 21’ and insert

‘Sections 1 to 4, 21 and 27(1) and (2)’.

Eric Illsley (Labour, Barnsley Central)

with this it will be convenient to consider Government amendments Nos. 30 to 32.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The Under-Secretary of State for the Home Department, my hon. Friend the Member for Enfield, North (Joan Ryan), flags up an issue on trafficking that did not emerge until after publication of the Bill. The amendment seeks to bring the Bill perfectly in line with our devolution arrangements. It proposes the simple remedy of delimiting the extent of the relevant clauses to England, Wales and Northern Ireland.

The effect of the amendment is limited. My hon. Friend and I needed some reassurance of what the practical implications would be. The amendment will allow us to preserve the existing situation. If there is people smuggling or human trafficking into the United Kingdom, or from Scotland into England or from England into Scotland, an offence would still be committed in each of those three situations regardless of whether the offence was undertaken by a British national or by a foreign national and of whether the crime was organised in the UK or abroad.

If the clause remains unamended, prosecution of the trafficking offence would need to be undertaken in a court in England. We therefore look to the Scottish Executive, at some time after the elections, to bring forward proposals to ensure that the remit of the Bill, and particularly of clause 45, is extended to Scotland so as to ensure that the offence can be prosecuted in Scottish courts as well as English courts. I am satisfied that there is no practical diminution of our intent to prosecute the offence in the UK. We have devolution arrangements in place, and it is important that Bills passed by the House should be in line with them.

Damian Green (Conservative, Ashford)

The issue of devolution has bedevilled the Bill from the start of its Committee stage almost to the finish. If I understand the Minister, he just said that for the provisions of the Bill to be effective, the Government will have to plead with the Scottish Executive after the elections to pass them.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Not the Bill, but the clause.

Damian Green (Conservative, Ashford)

I misspoke. I, too, meant to refer to the clause. Presumably, until that happens the protections afforded by the Bill will not be fully available to the people of England, Wales and Northern Ireland or, presumably, Scotland. As he said, he will depend on the good will of the Scottish Executive after the Scottish elections to agree to the things that the current Labour-led Scottish Executive has failed to agree to. I find that position, as I have done throughout, a slightly unusual one for a Government to find themselves in. However, many of the provisions of the Bill are useful, so I hope that, whatever the make-up of the Scottish Executive after the Scottish elections, Ministers will find that their powers of persuasion are more effective with the new Executive than they appear to be with the current one.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful to the hon. Gentleman for that reflection on the strengths and weaknesses of devolution. The key issue for me is that the provisions of the Bill will be given effect in the United Kingdom. We will be able to seek and deliver prosecutions under the offences of people trafficking and human smuggling. If the party that I think is going to win the Scottish election does win, it will not be long before the provisions apply in Scotland too.

New Clause 2

Liam Byrne (Labour, Birmingham, Hodge Hill)

I beg to move that the new clause be read a Second time.

Eric Illsley (Labour, Barnsley Central)

With this, it will be convenient to consider new clause 3—Assaulting an immigration officer: powers of arrest, &c.

Liam Byrne (Labour, Birmingham, Hodge Hill)

This is a debate that we have, to an extent, already had. The purpose of the clauses is to create the new offence of assaulting an immigration officer, to establish penalties and sanctions relating to that offence, and to ensure that there is the power of arrest, and to make the technical and consequential amendments that are required to ensure that it is possible to give effect to warrants to enter premises, to search individuals who are arrested and to seize material. They not only bring the new offence into being, but align it with the similar offences of assaulting an officer of Her Majesty’s Revenue and Customs and assaulting a police officer. The proposed penalties, which have been well debated by the Committee, are fairly standard and well established.

Before I sit down I underline the point that we have had a useful debate in the Committee, in which we have spent some time celebrating the contribution, pride and professionalism of our immigration officers. The Committee can take this opportunity to send an important signal to immigration service staff that we take their work extremely seriously and will ensure that they have the protection of the law where and when they need it.

James Clappison (Conservative, Hertsmere)

I have just one question. We notice that the offence in the new clause will be triable only summarily. If an immigration officer is assaulted and any harm is caused to him, which one imagines there might well be in many cases, it then becomes an offence of assault occasioning actual bodily harm and triable at the Crown court, because that offence carries a maximum sentence of five years and can be tried in either the magistrates court or the Crown court.

In a case in which the offence becomes triable in the Crown court and is tried there, what will happen to the summary-only offence of assaulting an immigration officer? Will it be able to stand as an alternative on the indictment in the Crown court for the offence of assault occasioning actual body harm?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful to the hon. Gentleman for such a direct question. Will he permit me to deliver him a much fuller response in writing than I am able to give him this afternoon?

James Clappison (Conservative, Hertsmere)

I look forward to the Minister’s response.

Crispin Blunt (Conservative, Reigate)

While the Minister is offering explanations in writing, would he be willing to offer an explanation of the advice that he received on the earlier amendment No. 108 so that we can decide whether to return to the matter on Report?

James Clappison (Conservative, Hertsmere)

Will the Minister address a related question in his letter to me? Will there be any way to communicate to sentencing judges, through sentencing guidelines, that if somebody is convicted of assaulting an immigration officer and occasioning actual bodily harm, the fact that it was an immigration officer who was assaulted should be regarded as an aggravating feature of the offence? That is to say, the fact that it was an offence of causing actual bodily harm to an immigration officer should be regarded as an aggravating circumstance and make the sentence more serious than it would otherwise be.

Eric Illsley (Labour, Barnsley Central)

Order. Before I call the Minister to respond, I have to say that he is obliged to respond only to the points on new clause 2. The hon. Member for Reigate is out of order in trying to raise amendment No. 108 again.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I have made it my policy to be as helpful to the Committee as I possibly can, and that is the path of least resistance to a successful Third Reading and Report stage. If there is advice that I can usefully summarise and provide to the Committee, I will of course seek to do so.

I am grateful for the comments of the hon. Member for Hertsmere. He has been consistent in his words of praise for the professionals in the immigration service. Like me, he understands that is important for the House to send a clear signal of support to immigration officers, who often do difficult work in dangerous circumstances. I will undertake to have a conversation with my noble Friend Baroness Scotland to understand what guidance we can issue to the judiciary so that they, too, can understand the gravity and seriousness with which we want the offences to be taken.

New Clause 3

New Clause 6

New Clause 7

New Clause 8

New Clause 9

New Clause 10

New Clause 11

New Clause 12

New Clause 13

New Clause 14

New Clause 16

Liam Byrne (Labour, Birmingham, Hodge Hill)

I beg to move, That the clause be read a Second time.

The purpose of the new clause is to tidy up some of the powers to raise money to help fund a robust and effective immigration system. I am afraid that I cannot offer the Committee any constitutional imagination, as we already have these powers. Section 51 of the Immigration, Asylum and Nationality Act 2006 gives the IND the power to cost recover. Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 gives the IND the power to over-cost charge. The clause allows us to over-cost charge on the basis of the value of the service that we provide to the migrant who applies for leave to enter.

There are currently a number of limitations to the powers, however, and I should like to sketch out two or three of them for the benefit of the Committee. First, we do not have the power to charge for the introduction of sponsorship arrangements. That is significant, because we are shortly to introduce a points-based system, which means that sponsoring organisations, whether businesses or colleges, will have a much more important role. At the moment, there is no law that allows us to charge for such arrangements, and they are expensive. They allow us to put in place an enforcement and compliance network of people throughout the country to ensure that sponsors behave appropriately. Given the conversations that we had about illegal working and bogus colleges, it is important that that network is robust and effective, so I would like the power to charge for introducing sponsorship arrangements.

The second limitation is a vires issue, which affects UKvisas. UKvisas is allowed to charge for its services under section 1 of the Consular Fees Act 1980. There are constraints on what it can charge for, however. In effect, it can charge only for administrative services that relate directly to consular activity, rather than for any aspect of enforcement of an effective immigration system that entails cost.

We want to do two or three things over the next couple of years to render our immigration system stronger. They include introducing sponsorship. The advent of the points-based system means that a lot of decision making will move abroad, so there will be no UK cost base against which we can charge. That means that there will be a volume shift of business overseas. It could be as high as 10 per cent., or it could be a little bit lower. The risk is that the UK cost base will be spread over a smaller number of applications. Given that many of the costs are fixed, one does not have to be a Nobel prize-winning economist to understand that there is therefore a risk of in-country fees going up.

The education and business communities and indeed the Select Committee on Home Affairs, of which the hon. Member for Hertsmere is a member, have consistently said that they want not divergence but convergence between out-of-country fees and in-country fees. A week or two ago, the CBI said:

“The current system clearly needs to be reformed. If rises in visa fees are necessary to fund these improvements, employers will see it as a price worth paying”.

The Home Affairs Committee said:

“The calculation of visa fees and in-country fees should be aligned”

at least in terms of what costs are taken into account and the impact assessment that accompanies them. We want to ensure that there is a degree of flexibility, so that there is not a great deal of divergence between out-of-country and in-country fees.

The new clause allows us to do three things: it allows the IND to cross-subsidise between in-country fee streams, it allows us to cross-subsidise between out-of-country and in-country fees, and it allows us to over-cost charge where necessary for new sponsorship arrangements. The fees to be proposed for such over-cost charging will, of course, be subject to the affirmative procedure, as they are today, and we will have to consult on fees where we plan to recover over costs. Crucially, the new clause will allow us to set fees at the market value and retain the flexibility to protect key segments of the population, as we proposed to do recently with students and visitors.

It is not in our interest, of course, to hike up fees to such an extent that people do not want to come to this country anymore. That would be hugely damaging for the British economy given that each year foreign students pay about £5 billion in fees to our universities and foreign visitors bring about £13 billion into the economy. I think that tourism is about the fourth or fifth biggest market sector in the economy.

The proposal will not, I am afraid, provide the IND with carte blanche to go crazy and put up fees as much as it would like. That would damage the economy and the country, and I think that the Treasury would have something to say about it. However, with new clause 16 we are seeking to acquire a degree of flexibility to help us render the charging scheme fit for the future.

Damian Green (Conservative, Ashford)

The new clause is simply headed “Fees.” It is a very short name for a very long clause.

I would describe the Minister’s performance just now as elegantly cynical, which is part of a trend. The Government have found a potential gold-mine about which nobody has complained too much, because the proposal is for a stealth tax on foreigners, which is politically more acceptable given the previous raft of stealth taxes that they have imposed on the rest of us and given that they will use the money to fund the activities of the IND.

So far we have not had any numbers. I shall be interested if the Minister will tell us how much extra revenue the Department has calculated will result from the flexibility that he is adding under this new clause. I dare say that we will have the same debate on visa fees when that comes before the Delegated Legislation Committee in the near future because the same principle applies.

We have no objection to the proposal in principle. The Minister’s last point was a good one: clearly, it is not simply a question of what the market will bear from individual applications or even classes of application because—I assume—he is not proposing to disaggregate it to such an extent that the Department will guess what each individual visa will bear. Presumably, if Goldman Sachs wants to bring in a bond trader, it would be in its economic interest to pay millions for that visa, whereas even the most brilliant student at the best university would not justify that kind of payment.

As well as figures, it would be interesting if the Minister would give us an indication of the degree of flexibility that he is proposing and, therefore, of who is likely to be funding the measure. As he said, the new clause refers to sponsors and, therefore, to UK businesses, academic institutions and, presumably, UK individuals. To put actual figures in the new clause would be illuminating for the Committee.

John Hemming (Liberal Democrat, Birmingham, Yardley)

It is reasonable to have a certain amount of flexibility and so the new clause has its rationale. There are some strange situations regarding fees charged at the moment and there needs to be some flexibility for cross-subsidy.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am reminded that I should spend more time, rather than less with the hon. Member for Ashford because I had not thought about individual-specific charging regimes. That is an interesting idea and I shall task my officials with working out a policy on it this afternoon.

Mr. Blunt rose—

Liam Byrne (Labour, Birmingham, Hodge Hill)

I shall spend more time with the hon. Member for Reigate if he would like.

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister, but what confidence should we have in his judgment and foresight on that measure? Only last night, he told Members in the Chamber of the House of Commons that he was

“sure that the hon. Member for Rochdale (Paul Rowen), who is representing the Liberal Democrats on that Committee, will forensically interrogate our proposals. On that basis, I commend the motion to the House.”—[Official Report, 19 March 2007; Vol. 458, c. 644.]

That was in response to the hon. Member for Somerton and Frome (Mr. Heath), who in stentorian tones, to the whole of the main Chamber of the House of Commons, said that

“it is not proper for this House, which prides itself on its ability to scrutinise when given the opportunity to do so, to allow to pass without any comment whatsoever a Ways and Means resolution that allows the Government, yet again, to ride roughshod over the House’s ability to scrutinise its business properly.”—[Official Report, 19 March 2007; Vol. 458, c. 643.]

The hon. Gentleman will have heard the interesting intervention from the hon. Member for Birmingham, Yardley, representing the Liberal Democrats here, in which he said that it was reasonable to have flexibility. I wonder whether the Minister would like to reconsider the terms in which he proposed the Ways and Means resolution last night.

Liam Byrne (Labour, Birmingham, Hodge Hill)

We have had to rely on members of the official Opposition for the most forensic analysis of the proposals this afternoon. The hon. Member for Ashford is right that further debates are scheduled about the precise charges proposed for next year. I live in hope that that forensic analysis is yet to come.

The hon. Gentleman made two important points, one about the degree of flexibility and the second wanting me to estimate the kinds of moneys that I might have in mind for the next financial year. We are putting forward no proposals for individual-specific pricing, although that is an interesting idea, which may warrant a bit more explanation. I am not sure that we would quite have that latitude within the provisions of new clause 16. More important, on the question of the amount of money that might be raised, when we published our enforcement strategy a week or two ago, I was optimistic that we might raise up to an extra £100 million through the measures in the next financial year. That is important because it means that we will be able to fund extra detention space and immigration officers and to strengthen our systems of immigration and of immigration policing. There are of course volume risks, but those are conservative assumptions. With that, I recommend the clause to the Committee.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I take the opportunity before we conclude our business to thank you, Mr. Illsley, and your co-Chairman, Mr. Amess, for such courteous and efficient chairing of business—so efficient that we have finished slightly earlier than anticipated, despite the level of analysis and the depth of discussion. I also thank the Clerks, the Hansard reporters, the police and others who have been connected with the conduct of the Committee. I think it has run extremely smoothly. In my Back-Bench career, I served on something like six Bill Committees in a reasonably short space of time, but this is by far and away the smoothest running Committee that I have sat on.

I was grateful too for the exemplary organisation of the public evidence sittings. Like many members of the Committee, I enjoyed the part that we played in the constitutional innovations that the Leader of the House steered through. I think that they were a valuable aspect of the scrutiny of the Bill. I also thank the Whips for the way that they have helped us stay on course. I would like to thank not only the Opposition Front-Bench spokesmen but all members of the Committee for the helpful and constructive way in which they have approached the debate. Finally, I thank my officials, who have worked extremely hard, often very late at night, over the past six months in order to put the Bill before the Committee. The Bill has been dispatched after a good deal of careful consideration. I thank the entire Committee, particularly the co-Chairmen.

Damian Green (Conservative, Ashford)

I echo the Minister’s words of thanks, particularly to you, Mr. Illsley, and to your co-Chairman. It has been a life-enhancing experience to be on a Committee chaired by the two of you. Similarly, I particularly thank the Clerk of the Committee for her hard work and guidance during the discussions and the tabling of amendments and so on, and of course the Hansard reporters and the police. The Minister talked about constitutional innovations, but I think that thanking Whips in public is possibly a constitutional innovation that I, as a Conservative, will have to go away and think about before committing myself to. It might be dangerous.

I extend my thanks and the thanks of those on the Opposition Benches to the Ministers for such clear exposition as they have been able to give on some of the amendments and clauses. As we all know, this has been not only a well run Committee, as the Minister said, but a good-natured one. I hope that, in its way, it has done some good work in moving the Bill forward and scrutinising it so that we can return to it, refreshed, at its later stages and seek to improve it even more.

John Hemming (Liberal Democrat, Birmingham, Yardley)

I echo those thanks, and I think that people will thank me for my brevity if I sit down. I also thank the hon. Member for Reigate for quoting last night’s Hansard.

Eric Illsley (Labour, Barnsley Central)

Before I put the Question, I thank hon. Members for their kind comments about myself and my fellow Chairman. I echo the Minister’s thanks to the police, the Hansard writers and the attendants. I add my thanks to the Scrutiny Unit and the witnesses who gave evidence in front of the Committee. I congratulate Members for the good-humoured way in which they have conducted themselves throughout the passage of the Bill, particularly as we have been following something of an experimental procedure over the past few weeks. Last, but by all means most, thanks to the Clerk for her hard work during the Committee stage.