Borders, Citizenship and Immigration Bill [Lords]

Public Bill Committee, 9 June 2009.

Nicholas Winterton (Conservative, Macclesfield)

I welcome hon. Members on both sides to the first sitting of this Public Bill Committee. Before we begin, I have some preliminary announcements. I am ever conscious of the comfort of Members, and if it gets a little warmer and they wish to take off their jackets, I am happy that they should do so. Again, and I say this with considerable emphasis, please would Members ensure that mobile phones, pagers and other electronic gadgets are switched to silent mode or preferably turned off during Committee.

I advise Members that there is a money resolution and a Ways and Means resolution in connection with the Bill and copies are available in the room. Adequate notice of amendments should be given and, as a general rule, I and my fellow Chairman, Anne Begg, do not intend to call starred amendments, including any that may be reached during an afternoon sitting. The Committee will first be asked to consider the programme motion, which is on the amendment paper, for which debate is limited to half an hour. We will then proceed to a motion to report written evidence, which I hope we can take formally. My first task, which is a pleasure, is to call the Minister to move the programme motion. I understand that he is to take this Bill through on his own, and we all wish him well in that heavy responsibility.

Phil Woolas (Labour, Oldham East and Saddleworth)

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 9 June) meet—

(a) at 4.00 pm on Tuesday 9 June;

(b) at 9.00 am and 1.00 pm on Thursday 11 June;

(c) at 10.30 am and 4.30 pm on Tuesday 16 June;

(d) at 9.00 am and 1.00 pm on Thursday 18 June;

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 18 June.

Thank you, Sir Nicholas. May I say what a genuine pleasure it is to serve once again under your chairmanship? You are a strong but fair Chairman and I look forward to the Committee. We had a Programming Sub-Committee, in which the Opposition made clear their principled objection to programming. We have not put knives in the debate; we have an end time. The usual channels have a good agreement, so I will not delay the Committee any further.

Damian Green (Conservative, Ashford)

It is, as ever, life-enhancing to serve under your chairmanship, Sir Nicholas. I know that you would not wish to accuse me of crawling to the Chair at this early stage of the proceedings. I reiterate our objection in principle to the routine, indeed universal, use of programming. It is particularly inappropriate with this Bill, as will be illustrated. The usual channels have operated well and we have all accepted a suitable programme for progress over the sittings allocated. Given that it is considerably smaller than the draft Bill that the Government put forward a few months ago, it should not and need not be particularly difficult. Many of the more contentious elements and, regrettably, many of the better elements have been taken out. During our proceedings we will attempt to re-insert parts of the draft Bill, which is what some of our amendments try to do. Given that those were originally Government proposals, we look forward to the support of Government Members.

A raft of Government amendments have been tabled already, and I wait with eager anticipation for further amendments to give effect to some of the measures that the former Home Secretary told us about on Second Reading, including a points-based system for citizenship and a cap on the number of people allowed to apply for it.

Phil Woolas (Labour, Oldham East and Saddleworth)

She did not say that.

Damian Green (Conservative, Ashford)

That is what she told us. I am genuinely interested to know whether those policies have survived the change of Home Secretary last week and whether the appropriate amendments on citizenship will be tabled, as would be entirely proper. Will we have the opportunity to discuss, if not during Committee, on Report, the very interesting ideas that the former Home Secretary put before the House on Second Reading? As I said, however, we have an in-principle objection to these proceedings, but not to the programming motion.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I echo colleagues’ comments: it is a pleasure to serve under your chairmanship, Sir Nicholas. Regardless of whether we have objections, in principle, to programming, we support the timetable for this Committee stage. We considered the need for more sittings, but felt that, given that Second Reading did not quite go the full course, the agreed number of sittings might be sufficient to deal with the points that we seek to address. To echo points made, it is disappointing that this Bill does not cover some aspects of borders, citizenship and immigration matters, such as the Government’s call for the simplification of legislation—I am not convinced that the Bill represents a simplification. Neither does it address a major area of concern about, for example, the destitution of refused asylum seekers who cannot be returned to places such as Zimbabwe. That could, and should, have been addressed, but regrettably was not.

With those few comments, however, the Liberal Democrats are happy with the timetable for the Bill, which we hope to investigate and probe further over the next couple of weeks.

Nicholas Winterton (Conservative, Macclesfield)

I advise hon. Members that copies of any memorandums that the Committee receives will be made available in the Committee Room.

Clause 1

Phil Woolas (Labour, Oldham East and Saddleworth)

I beg to move amendment 18, in clause 1, page 2, line 17, after ‘section’ insert ‘(other than in subsection (8))’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Government amendments 19 to 26.

Amendment 15, in clause 26, page 20, line 8, leave out from ‘State’ to end of line and insert ‘or the Director’.

Government amendment 29.

Phil Woolas (Labour, Oldham East and Saddleworth)

I beg your forgiveness, Sir Nicholas, because I would like to put the amendments in the context of the clause.

Nicholas Winterton (Conservative, Macclesfield)

I am most grateful to the Minister for having discussed this matter with me already. I am very happy for the mover of an amendment—in this case, the Minister—on occasion to explain the purpose of the relevant clause. That might remove the necessity of a clause stand part debate, which may often go over matters that have already been discussed. If it allows for proper scrutiny, I am happy for the clause to be described in general at the beginning of a group of amendments.

Phil Woolas (Labour, Oldham East and Saddleworth)

Thank you very much, Sir Nicholas.

The Committee will be aware that the clause is a key component of part 1 of the Bill. Part 1 runs from clause 1 to clause 38 and deals with the UK Border Agency. In essence, it proposes that we put on a statutory footing the merger of the customs functions taken from Her Majesty’s Revenue and Customs and the immigration functions taken from the Border and Immigration Agency, previously known as the immigration and nationality directorate.

Clause 1 relates to the general customs functions of the Secretary of State. Bringing the functions together will increase the UK Border Agency’s effectiveness in tackling smuggling, illegal immigration and other cross-border crime. Providing more flexibility and powers for the deployment of officers in tackling those threats at the border will enhance border security and therefore the protection of our country.

The clause will give the Secretary of State the power to exercise general customs functions concurrently with the commissioners for Revenue And Customs. The clause specifically prevents the Secretary of State from exercising any of the commissioners’ revenue functions or any of their non-revenue functions that are not relevant to the UK Border Agency’s role, such as their work inland regulating bureaux de change and other money businesses. There is a transfer of powers from Her Majesty’s Revenue and Customs. I think that the Committee will be satisfied that the Bill contains the necessary safeguards, which are there already for Revenue and Customs.

I will explain the derivation and impact of the amendments before us. The Bill has been subject to significant scrutiny. I am a big fan of pre-legislative scrutiny—and, for the record, post-legislative scrutiny. The House would be wise to do more of that. The hon. Member for Ashford has mentioned the draft Bill. The short Bill before us is not the complete jigsaw puzzle. The draft Bill that has been scrutinised in part by the Select Committee will be brought back to the House with proposals. The Bill we are considering is a Lords Bill. It started in the Lords and has been scrutinised there.

Damian Green (Conservative, Ashford)

I apologise for interrupting the Minister when he is only just getting into his flow. When he says that the draft Bill is coming back, does he mean that the simplification Bill in the next Session will include everything in the draft Bill?

Phil Woolas (Labour, Oldham East and Saddleworth)

Yes. The draft Bill will come back as the simplification Bill. That is an attempt to have a comprehensive Bill.

True to our word, we have listened to the other place. The Government amendments will refine the clause in response to the noble Lords’ debate and some of their suggestions. Never let it be said that the Government are inflexible in the face of good scrutiny. What is perhaps confusing for hon. Members is that some of the amendments do not relate to clause 1. However, it was wise to put them together.

Let me explain the purpose of these amendments. I advise the Committee to resist amendment 15, tabled by the hon. Member for Ashford, who will no doubt explain his proposition. The purpose of my amendments is to clarify the extent of the customs functions that may be exercised by, first, the Secretary of State, and secondly, the director of border revenue—we will debate who that should be in further clauses and amendments—as well as designated customs officials. Specifically, the Government amendments make clear that these functions include customs functions under European Community law. The amendments follow scrutiny in the other place and we believe they are necessary to ensure that the remit of the UK Border Agency, in respect of the exercise of its new customs functions, is clear and that adjustments can be made to exclude or include particular functions as appropriate from the definition of general customs functions.

This is necessary for two reasons. First, clause 1 enables the Secretary of State to exercise the functions of the commissioners for Revenue and Customs concurrently with them in relation to general customs matters. The term “general customs matters” may draw in certain functions already exercisable by the Secretary of State and there is, therefore, a need to ensure that other provisions in the Bill, such as the information provisions covered in clauses 14 to 20, apply only to the functions of the commissioners which the Secretary of State will be able to exercise under the Bill. Secondly, it is necessary to ensure that the information clauses apply to customs functions exercisable directly under Community law. Specifically, amendments 18 and 19 amend the meaning for the purposes of part 1 of the Bill of “general customs functions”. They clarify the extent of these exercisable by the Secretary of State and the general customs officials. The effect of the amendment is to make clear that the relevant customs functions are, first, those that are exercisable by virtue of clause 1 and clause 3; secondly, those that are conferred on either the Secretary of State or general customs officials by virtue of clauses 22 to 24; and thirdly, those under Community law. The amendment also ensures that the information clauses in the Bill apply to all of these functions.

Amendment 20, the third one in the group, is related and consequential to amendments 18 and 19.

Amendment 21 is similarly consequential to amendments 18 and 19 and adjusts, confusingly, perhaps, Sir Nicholas, if you are still with me—

Nicholas Winterton (Conservative, Macclesfield)

I am.

Phil Woolas (Labour, Oldham East and Saddleworth)

—clause 5 to reflect the new definition of “general customs functions”, which we are discussing in clause 1. Amendment 22 is similar in its purpose and effect to amendments 18 and 19. It amends clause 7 to clarify the extent of the customs revenue functions which may be exercised by the director of border revenue and customs revenue officials. Amendments 23, 24 and 25 are consequential to amendment 22 and change respectively clauses 9, 10 and 13 to reflect the new definition in clause 7 that I just referred to. Amendment 26 is related to the other amendments in this group. It clarifies that clause 26—which provides for transfer schemes to be made by HMRC—applies to things done by the Secretary of State, director of border revenue or designated customs officials in connection with the relevant function as previously exercised by the commissioners or an officer of Revenue and Customs including things done under Community law.

Amendment 29 amends clause 38 to provide interpretation for the term Community law for the purposes of part 1 of the Bill. That interpretation is necessary, I am advised, to make clear the meaning of that term which is now used in clauses 1 and 7 as a result of amendments 18, 19 and 22. In short, in order to transfer the powers of customs to the new set-up, the new agency—the Secretary of State, the director of border revenue, who we propose to be the chief executive officer of the UK Border Agency, and designated officials under her—we need clarity in the definition of those powers, and that is what the amendment brings.

If I may, Sir Nicholas, I would like to ask the Committee to consider the arguments on amendment 15. The hon. Member for Ashford will explain what he is trying to do here better than I can, but removing designated customs officials from the definition of a relevant function, for the purposes of the transfer of the scheme’s provisions in clause 26, would not achieve what we want to see. Clause 26(7) defines a relevant function as:

“A function conferred by...this Part on the Secretary of State, the Director or a designated customs official”.

Under the amendment, a transfer scheme could not operate so as to transfer things done by the commissioners or revenue and customs officers in relation to functions conferred by the Bill on designated customs officials. Proceedings on other matters done or started by an officer, such as seizure actions, could not be treated as done and continued by a designated customs officer. The scheme would only work, therefore, in respect of functions transferred to the Secretary of State or the director of border revenue, rather than their officers.

I hope I have explained the purpose of the amendments as clearly as possible. At this early stage of the Bill’s proceedings I ask for the trust of the Committee and will try to clarify any explanation that I may have inadequately given. However, I assure you, Sir Nicholas that the amendments result from a very deep consideration of the points made in the other place. I therefore urge the Committee to support the Government amendments and to consider the argument of the hon. Member for Ashford on amendment 15.

Damian Green (Conservative, Ashford)

I thank the Minister for that tour de force of clarity in the face of some opposition from the words in front of him. I was remiss in not congratulating him on still sitting there and retaining his post, in the light of recent events. Whether he is as delighted as I am still to be there—[Interruption.] I apologise, Sir Nicholas. If it is any consolation to the Committee, it was my wife. I apologise.

Nicholas Winterton (Conservative, Macclesfield)

I am glad the mobile phone was on silent—ish.

Damian Green (Conservative, Ashford)

Ish. Moving swiftly on, Sir Nicholas.

Before I address the detail of what the Minister said, I would like to return to the point I raised in my intervention. The Minister said that the draft Bill, of which this Bill was a small part, will now become the simplification Bill. I am genuinely puzzled and hope that in the course of our discussions he can explain the purpose of introducing the simplification Bill, which we know is hundreds of clauses long and very complex, at this stage of the parliamentary cycle where, whatever happens, it is extremely unlikely to complete its course before a general election that has to take place by May or June of next year. It seems a bizarre use of parliamentary time.

Phil Woolas (Labour, Oldham East and Saddleworth)

That is because we are going to win.

Damian Green (Conservative, Ashford)

The Minister says from a sedentary position that the Labour party is going to win the next election. The British people will decide, as they did last week. He knows that if Parliament is dissolved the Bill will fall, and even if he is still sitting there in a year’s time, he will have to reintroduce it. I am genuinely puzzled as to what the organisational purpose is of introducing it now.

Before I test your patience any longer, Sir Nicholas, let me turn to the Conservative amendments and the many Government amendments. On looking at the amendment paper, the Committee might reasonably have been disturbed to find 10 Government amendments to clause 1 of this Government’s eighth immigration Bill. That does not build confidence, and I was even more exercised by the papers from outside lobby groups and others, in which one of the first amendments proposed to Opposition parties was to delete the whole of part 1. I had felt that this was one of the less controversial parts of the Bill, yet there are those outside who wish the whole part deleted, and the Government have tabled multiple amendments to their own legislation.

It is not as alarming as all that, as some of the amendments clearly derive, as the Minister has said, from some good debates in another place. We should be grateful to their lordships for the scrutiny they have applied to the Bill, and from which this group of amendments derives. I am particularly glad that in this instance Ministers appear to have listened to their lordships, because I think that some of the more contentious debates that we will have in Committee will arise from the Government trying to reverse the votes taken in another place.

As the Minister has made clear, this group of amendments deals with the extension of the powers of customs officers and immigration officers and the proper way to exercise those powers. We are talking about the general customs function and it is reasonable to ask for a substantial explanation of that function. It was the focus of much of the debate in another place, and the Minister has struggled manfully with that. Government amendment 19 in particular, however, seems to be close to saying that a general customs function is what Ministers say it is:

“a function that is exercisable—

(i) by the Secretary of State by virtue of this section, or

(ii) by general customs officials”.

That is to say, that one can tell that it is a general customs function because it is being exercised by customs officials. I feel that that is never an entirely satisfactory way of defining something in legislation. It is not immediately clear what functions would be included or excluded from the range of general customs functions by way of the amendment. This is the right part of the Bill in which to ask these questions, and perhaps to ask the Minister to state, when he sums up, what general customs functions he is talking about, in practical terms. I am sure that we could all sit down and make a list of what we think general customs functions would be, but it would be extremely useful to have that on the record. I encourage the Minister to make clear reference to the functions for the commissioners for Revenue and Customs, and to tell us which functions should be included or excluded from the general customs functions—general customs matters, as they are referred to elsewhere in the Bill.

One of the reasons why it is important to establish great clarity at this stage is that we should be clear that the amendments give extra powers to the Secretary of State, and through him to immigration officials. The question of whether those powers are exercised by appropriately trained people lies at the heart of the debate about the changes within the UK Border Agency and HMRC. To some extent, there is no great divide across the House on that. We agree that there has been too great a diversity—an incoherence, indeed—of people with powers at the border, and we all want more cross-cutting powers. As the Committee will discuss later, the Conservatives favour a proper integrated border police force so that the powers will be exercised by trained police officers, which would help to alleviate the problem. Before we get to that, however, when powers are being shared and spread around, as they will be under the amendments, it is legitimate to ask about the new functions and the new powers that they represent, and about who will be exercising those powers.

Effectively, the customs officials’ powers, which are extremely broad, are being shared out to immigration officers. As the Minister will be aware, customs officials can undertake a very wide range of extremely intrusive activities. The Customs and Excise Management Act 1979 confers many of those functions and powers. Under that Act, a customs officer may ask to search a person or anything they have with them if he or she reasonably suspects that the person is carrying any item that is prohibited or restricted, or any item that is liable to excise duty or tax that has not been paid. Furthermore, officials have the power to detain a person for as long as is reasonably necessary while the search is being carried out. If a person does not agree to that search, a customs official may make an arrest. I am going into detail because it is worth the Committee considering the full extent of the powers that customs officials have when they are being shared around.

The threshold for the reasonable suspicion that a customs officer needs to have is very low and can include a combination of factors, including the origin of a person’s journey, their clothing and any unusual quantity of luggage. The threshold is low and the intrusive powers are great. Searches can include searches of pockets, a rub-down, a strip search or an intimate search. The powers available to customs officers also include forfeiture powers, powers to enter premises, and powers of search and seizure. This measure extends those powers to UKBA staff, who will be able to carry out physical examinations at the frontier, both of their own volition and at the direction of HMRC.

On top of those things, customs officials have the capacity to take fingerprints and DNA, and they can seize money under the Proceeds of Crime Act 2002. They have surveillance powers under the Regulation of Investigatory Powers Act 2000 and data acquisition and sharing powers under the Identity Cards Act 2006, the UK Borders Act 2007 and the Serious Crime Act 2007.

At this stage of our proceedings, we ought to have some kind of reassurance from the Minister that the extension of the powers, which are very extensive and intrusive, is being handled properly and that they are being extended to people who are properly trained and equipped to deal with them. I hope that the Minister addresses in detail whether the clause could provide that the extension does not apply to section 164 of the Customs and Excise Management Act 1979, which allows customs officers, and therefore, one would assume, immigration officers, the powers to undertake intimate searches.

A number of other customs powers appear not to bear any relationship to immigration, and it is legitimate to ask the Minister whether they should have been exempted or why they are necessary for the proper control of immigration. The idea of greater coherence is good in principle, as I said, and obviously it almost goes without saying that Members on both sides of the Committee want a better controlled immigration system. However, I have genuine worries, as do others, about some of the details and the possible spread of powers to people who are not properly trained in exercising them.

I tabled amendment 15 to probe the Government’s intentions. It would restrict the power of the Secretary of State or the director of border revenue to designate any official to carry out those customs functions. The Minister has already said that he does not accept the amendment as he thinks that it would be unduly restrictive. I accept that it is designed to be restrictive, but it was tabled precisely to explore the full extent of the extension and sharing of power that he proposes. I am sure that he will accept that that point applies not only to the clause and the amendments, but to the whole of part 1. While we proceed along this path—which we both agree is one we should go down—it is all the more important to ensure that we do not extend intrusive powers unnecessarily, as there are important matters of civil liberties to consider.

In principle, the Conservative party believes that there is not enough coherence between the many agencies that currently operate at our borders. The Government have been anxious for a couple of years to look as though they are setting up a single border force. They do not actually seem to be doing so, but I suppose that we should count our blessings where we can. The fact that the Government seek to move in that direction is better than the reverse would be. In that context, we are not hostile in principle to the Government’s intentions in the clause, but I would welcome the clarifications that I have sought from the Minister about the detailed practical effects of the general customs function, and of the extension of powers proposed in his amendments.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I support the general principle behind what the Government seek to achieve by better integrating aspects of customs and immigration. The Liberal Democrat party favours a UK border force similar to that advocated by the Conservative spokesman, but we would also combine police powers. However, we are supportive of the general principle behind what the Government seek to do.

Like the hon. Member for Ashford, we have concerns about the extent to which general customs functions are being extended. He did a good job of outlining the powers available to customs officers and noting the reasons why there need to be suitable safeguards in place and training available. I hope that the Minister will be specific about what grade of officers will have those powers and whether the level of training that they receive will be comparable to that provided to customs officers. I hope that hon. Members will get some reassurance that the people who take on these extensive—and in some cases intrusive—powers, will be suitably qualified for the job.

I support the description given by the hon. Member for Ashford of amendment 15 as a general probing amendment designed to get the Government to be more specific in explaining how the powers will be extended and the extent to which that is happening. I hope that hon. Members can have some reassurance that the provision is within the spirit of what we are all trying to achieve, but does not provide extensive powers that we would feel uncomfortable with should they be exercised by people who were not suitably trained, or who had powers beyond what would be considered acceptable. I shall listen carefully to the Minister’s response, particularly in relation to amendment 15, and hope that it is satisfactory.

Phil Woolas (Labour, Oldham East and Saddleworth)

Those questions were entirely reasonable, and some were powerful. I shall try to answer them.

First, I must make it clear that we are talking about general customs functions, as distinct from customs revenue functions. The revenue functions, established under HMRC, have a relationship to Ministers that is different from general customs functions, which we shall deal with under clause 6 and elsewhere. Ministers cannot be involved in customs financial revenue functions, just as we cannot be involved in Inland Revenue functions. That is quite right, and I hope that it always remains so.

The director of border revenue, whom we propose to be the chief executive of UKBA—the “accountable officer” is a phrase with which Members will be familiar—would deal exclusively with customs revenue functions such as the collection and enforcement of excise duties on imported alcohol and tobacco, the collection and enforcement of customs duties more generally, import VAT, and the prevention of smuggling of goods liable to VAT and excise and customs duties.

The hon. Member for Ashford asked me to give some examples of what is meant in the real world by general customs. Seizing criminal cash is a common function. Others include preventing unsafe products being imported into the UK; maintaining sanctions on countries and arms embargos; reducing and deterring trade in endangered species of animals and plants; control of commercial vessels and ships coming into our ports; preventing the importation of offensive weapons such as knives, daggers and so on; preventing the importation of obscene or indecent material, particularly child pornography; preventing the introduction of pest and diseases harmful to animals and/or humans, such as foot and mouth, bird flu and fowl plague; preventing the import and export of controlled drugs; and preventing chemical weapons, toxic chemicals and so on from coming into the UK and being obtained by terrorist organisations. That is not an exhaustive list, but they are the main headings under the general customs functions.

Few new powers are given under part 1. Those powers mentioned are existing customs powers. The hon. Member for Ashford got the point about UKBA, but he is right that the powers, if designated to officials, will include what are currently the powers of immigration officers. I have answered his question directly.

The Secretary of State already has the power to put in place effective border controls relating to immigration matters, and although the Bill’s provisions extend the functions of the Home Secretary to include the general customs matters that I have listed, they do not create new substantive powers. Instead, the provisions simply allow the exercise of existing powers by the Home Secretary and his officials rather than by Her Majesty’s Revenue and Customs. More importantly, and to reassure the Committee, they do not result in any loss of border control powers when transferring functions from Revenue and Customs to the Border Agency.

On the specific point being quietly pushed by the hon. Members for Ashford and for Carshalton and Wallington, immigration officers at ports—I include airports in that—have a wide range of powers to operate immigration control and tackle immigration-related crime. Part of our strategy is exactly to use immigration powers to tackle immigration-related crime. It is what inside UKBA we call the Elliott Ness strategy, and very effective it is, too.

Damian Green (Conservative, Ashford)

I am not sure that the Minister meant to say that he was using immigration powers to tackle immigration offences—the Elliott Ness strategy. Did he mean customs powers to tackle immigration?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is very awake this morning. The story of Elliott Ness is that Al Capone, the gangster, was caught not by the laws relating to murder and guns, but by the tax laws. Immigration-related crime can on occasions be properly highlighted by the using immigration powers. There is nothing new about that. He asked whether I meant customs-related powers. The powers of examination, search, detention and arrest already apply to immigration officials in relation to immigration control and immigration-related crime. As we know, customs officers also have a wide range of powers to combat smuggling of prohibited, restricted or dutiable goods at the border, such as drugs, guns, tobacco and alcohol. One of the key arguments why everyone supports bringing together the two functions is because we are often trying to catch the same people.

The powers of customs officials include powers of questioning, search, detention, seizure and arrest. In integrating immigration customs controls, it is essential that officers of the border agency have the necessary powers to carry out the full range of immigration and customs functions at the border to support wider law enforcement activity. When we discuss clause 23, we shall go into more detail about the Police and Criminal Evidence Act 1984 powers that the amendments tabled by the hon. Member for Carshalton and Wallington highlight, and I commend the consistency of his approach.

The key difference between the two sets of powers is, indeed, the seizure power, which is related to later measures. In integrating immigration and customs controls, it is essential that the officers have the necessary powers to carry out the full range of immigration and customs functions at the border. Not only will that enhance the skills and capabilities of our border force but, by increasing the capacity, it will also allow us to respond more flexibly to the threats that we face and to maximise the effectiveness of the agency.

The hon. Member for Ashford asked whether the powers would therefore be properly authorised. That was his consequential point. The designation of officers under the Bill can take place only when the officer is suitable and properly trained. That includes powers to search persons, as has been noted. However, the power will be used not for immigration functions, but for customs functions only, as it is now.

The hon. Member for Carshalton and Wallington asked about the training for designated customs officials. Before being entitled to be designated, they must undertake training. The appropriate skills required include, of course, those under the relevant legislation; knowledge of the customs regime, such as the common agricultural policy; disclosure handling of material that is gathered during criminal investigation; questioning and note-taking; how to arrest and caution; custody charging and bail procedures; rules of evidence; customs allowances; how to deal with EU and non-EU goods; the calculation of duty and VAT; searching a person’s baggage and vehicle; and personal safety training, of course. I bring to the Committee’s attention, in particular to that of my hon. Friend the Member for Midlothian, that that training needs to be specific to Scotland, where there is a separate legal regime.

David Hamilton (Labour, Midlothian)

Some time ago, I was involved in a Westminster Hall debate on the issue. It makes no sense to simplify legislation while we continue to use various local police forces. That does not add up. For example, in Scotland, Strathclyde police have to deal with Glasgow airport, Lothian and Borders police with Edinburgh airport, Tayside police with Dundee airport and Grampian police with Aberdeen airport. Is this not the time to consider a proper UK border police force? That would make perfect sense, because it would be a logical extension of how things are going.

Simon Burns (Conservative, West Chelmsford)

That is what we think.

David Hamilton (Labour, Midlothian)

I do not agree with the Tories though.

Nicholas Winterton (Conservative, Macclesfield)

Order. May I help the Committee? That was a very relevant question, but I am not entirely sure that it is relevant at this stage. However, I will use my discretion and allow the Minister to reply.

Phil Woolas (Labour, Oldham East and Saddleworth)

Thank you, Sir Nicholas. The relevant phrase is, “Now is not the time.” I do not mean that in relation to the Committee’s debate, but in relation to the evolution of UKBA. The hon. Member—

Simon Burns (Conservative, West Chelmsford)

Friend.

Phil Woolas (Labour, Oldham East and Saddleworth)

My hon. Friend makes an important point about the relationship between police forces, UKBA and the existing powers. This morning’s debate is restricted to a set of proposals that simply transfer existing powers from HMRC to UKBA and expand the role of immigration officials to include the capacity, under certain conditions that I have outlined, to deal with customs as well as immigration matters.

I accept the intention of amendment 15, as proposed by the hon. Member for Ashford, but it would not have the desired effect. In practice, it would exclusively transfer functions to the Secretary of State and to the director of border revenue, and not to their officers, so they would not be allowed to carry out their functions.

Damian Green (Conservative, Ashford)

The Minister will be relieved that I am not going to discuss the border police again. He has very helpfully given us a list of all the ways in which officers being given the new powers will have to be trained, which illustrates the extensive amount of training and the sensitive subjects involved. Will he give an indication of the level and length of training that is being undertaken by officials who are being given the new powers? Clearly, customs powers need to be given to some while immigration training needs to be given to others. It would help the Committee to know whether the training is as thorough as it should be so that we can all have confidence in the people who are given the powers.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Will the Minister give way?

Phil Woolas (Labour, Oldham East and Saddleworth)

If the question is on the same point, I will.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

To echo that point, will the Minister confirm whether the training will be of the same duration as the current training? He also highlighted seizure as an area in which there are new powers. Will he focus on that in particular and confirm that the training will be identical to the current training given to customs officials?

Phil Woolas (Labour, Oldham East and Saddleworth)

Personally, I believe that that is an extremely important point. Part of our strategy in unifying UKBA is to increase the public’s awareness of the professional status of our officials. In short, they get a bad press, which is unfair because they do a very dangerous job in many cases and occasionally have to deal with some pretty difficult people. I do not mean just members of the British public; I mean criminal elements. Of course, the management strategies that are in place for transferring the functions are not wholesale. There is not a simple move-over; there is a staged approach. I will make some points about that approach which may be helpful.

We have transferred some 4,500 officers of Revenue and Customs to the UK Border Agency so that they can continue carrying out their customs functions. What matters is the size of the port. At Harwich, for example, where there is a team of about two dozen immigration and customs officials dealing with the two major ferry routes and the general freight, having more flexibility clearly means that there is a greater capacity. However, if one looks at, say, Heathrow’s terminal 3—I choose that example off the top of my head—where there are a large number of staff, there are more specialisms within that staff group, so the training programmes are bespoke. It is not as if all officers are getting all the same training to transfer to do all the same functions. As I am sure the hon. Gentleman accepts, it is not as straightforward as that.

As I have said, however, some 4,500 officers of Revenue and Customs will transfer to the UK Border Agency to continue carrying out their customs functions. The training for officers, to top up, involves two weeks of guided learning, a six-week residential course and a period of between four and six weeks, depending on the port or airport concerned, in situ. That training is also accredited and it is, of course, not the full extent of the training that is required. So there are programmes in place to help people to transfer and to top up.

I think that the specific question was, “Can we be confident?” I have satisfied myself that the training is in addition to other requirements and that it is both working and beneficial. I have seen the success of the project on my visits. I hope that that does not sound like propaganda; I am speaking on behalf of the agency rather than making any political point. The successes that we have had in seizures and in stopping clandestines can be ascribed, I think, to the establishment of the agency. In some cases, I think that they can be ascribed to better training, although the technology is perhaps having a major effect too.

I reassure the Committee by saying that the transfer of the powers does not involve new powers. The relationship between the Secretary of State and the revenue functions of Customs does not change that strongly held and conventional principle about new powers in our systems.

The hon. Member for Ashford is right about the powers on immigration: they extend to customs functions as part of the establishment of the agency. The point about the police and their relationship with this issue, which my hon. Friend the Member for Midlothian raised and which has also been raised in the other place, is covered elsewhere in the Bill.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I want to be certain that the Minister understands our concerns; I am sure that he does. We are still worried that officers are potentially becoming more generalist in their approach, with a wider range of responsibilities that potentially leads to more problems, or more failures to follow the appropriate guidelines or procedures. Is anything in place that will ensure that the training programme is reviewed after a certain period, to guarantee that it is pitched at the appropriate level?

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not aware of a specific date by which there would be a review; I would have to ask the senior management to give me information on that. What I can say is that the transfer of terms and conditions is one of the most complicated transfers of this kind that I have been aware of, and I have seen a lot of such transfers. Training, and the commitment to revisit training, are part of that process. We need to see whether the training is working and whether we have got the balance between the economies of scale, with the greater flexibilities that they bring and the specialisms that are needed, right in each port.

A real example would be X-raying for radioactive materials. Perhaps the most important function that UKBA carries out is trying to prevent people from bringing dirty bombs into the country. Clearly, that is a specialist function and we will not dilute it. Having said that, the answer to the specific question is that I cannot in all honesty say that I am aware of a date. The advice I have just been handed assures me that training is being reviewed, but I apologise because I do not think there is a specific date on that. I think it is a rolling programme, depending on the circumstances in the ports and airports.

I hope I have convinced the Committee that the amendments are necessary and beneficial and that amendment No. 15, although well intended, would not achieve what it is designed to do. I nevertheless accept the intention behind the amendment tabled by the hon. Member for Ashford.

Clause 2

Damian Green (Conservative, Ashford)

I beg to move amendment 2, in clause 2, page 3, line 15, at end add—

‘(4) The Secretary of State must lay an annual report before both Houses of Parliament detailing the amendments that have been made by order under subsection (1).’.

I observe that we all spoke very briefly about how the programme motion was very relaxed, and we have just spent an hour dealing with clause 1 of a 61 clause Bill. I seek to reassure hon. Members on both sides of the Committee in saying that I suspect that from now on progress will be slightly faster, unless there are more rafts of Government amendments, as yet unseen, for later parts of the Bill. That is always possible.

Amendment 2 would protect and enhance the powers of this place. We suggest that the Secretary of State should have to lay an annual report before both Houses of Parliament detailing the amendments that have been made by order under subsection (1). This aspect of the Bill was not debated in another place, but as we have just debated, the Home Secretary has the power to amend the definitions and applications of general customs matters, which, as we established in that very good debate, are extremely powerful matters in the hands of officers. If they can be amended by the Home Secretary, we believe it right that he should report regularly to the House on the changes made.

On Second Reading, there was a degree of consensus on that matter among Opposition parties. The hon. Member for Eastleigh (Chris Huhne), who speaks for the Liberal Democrats on home affairs, complained about a degree of reliance on statutory instruments, which give Ministers the power to make things up at a later date. A similar complaint was made not only by me, but by my hon. Friend the shadow Home Secretary.

Such concerns take on added significance in light of amendment 20, which has just been agreed to. I think we would all agree that, at this difficult time for Parliament, the power of Parliament to scrutinise legislation in detail is one of the things that we do not get right and we have not got right for a very long time. Frankly, we should avail ourselves of every opportunity to give Parliament the chance to do one of the jobs that people expect it to do. It should not simply scrutinise the big Bills on Second Reading or in Committee; it should make sure that the small things that often become big later are properly scrutinised as well.

The Minister made an extremely good point earlier when he said that he believed in pre-legislative scrutiny. He is right about that. However, he also said that he believed in post-legislative scrutiny and he is right about that, too. Inevitably, some legislation has unintended consequences. If the House of Commons passes legislation knowingly and openly and there are unintended consequences, we all have to face up to that problem. However, the amendment would stop a different problem whereby innocuous- looking orders, or decisions, can be made by Ministers—not quite in secret; I am not accusing anyone of that—in relation to matters that would not normally attract any attention. One, two or three years down the line, one might suddenly discover that those issues have had a significant effect on the lives of many people, who cannot understand how the decision was made without anyone raising an objection at the time.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have some sympathy with the hon. Gentleman’s proposal, but if it an annual report, will that not be published after the horse has bolted? Therefore, all his concerns will remain because it will simply be a case of logging what has already happened.

Damian Green (Conservative, Ashford)

To some extent, that is a perfectly fair point. This is not perfect. Perfection would be to give Parliament the ability to scrutinise publicly and in debate every order that is made. I think we all know that, in practical terms, that is not going to happen.

Where I disagree with the hon. Gentleman is that even if it is a case of looking at things after they have happened, the fact that Ministers will have to make this annual report—and they know that they will have to do so—will act as a brake on them and make them think, “Do I want to write this into the annual report that I know I will have to produce on these matters? Will this look acceptable?” The use of deterrents is an important weapon for Parliament to have.

Again, I am sure that all parties would agree that it is dangerous to allow Ministers almost unfettered power, but that is one of the possible effects of the system that we have. It is sensible for this House to seek to insert itself into that process and to be able to do its proper job. Clause 2 (2)(b) in particular gives Ministers extremely wide powers. Any sensible Minister would welcome the possibility of having some sort of oversight because, of course, one of the long-term effects of effective oversight is that Ministers can often be saved from themselves. The prospect of being scrutinised would give rise to further ministerial self-censorship, and prevent foolish things being done. This is a modest proposal, which I hope the Minister will welcome for his own sake as much as anyone else’s.

Phil Woolas (Labour, Oldham East and Saddleworth)

I agree with the hon. Gentleman’s intent. It is important to clarify Parliament’s intent because otherwise it is left to courts and tribunals to do so, but let me reassure him.

The clause and the explanatory notes describe the powers being transferred, which can be used only by affirmative order of the House. Therefore, the purpose of the hon. Gentleman’s amendment—that Ministers would have to justify such use—is already met. My argument against the annual report is not that it is not desirable for accountability—he is absolutely right that the existence of such a report would get the Minister to consider that—but that that is already the case because of the affirmative resolution requirement. With that reassurance, I hope that he will not press his amendment.

Damian Green (Conservative, Ashford)

I am grateful for the Minister’s words. In the spirit of good will, I shall accept his reassurance and beg to ask leave to withdraw the amendment.

Clause 3

Damian Green (Conservative, Ashford)

I beg to move amendment 3, in clause 3, page 3, line 20, leave out from ‘officer’ to end of line 21.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment 4, in clause 3, page 3, line 28, leave out subsection (3).

Damian Green (Conservative, Ashford)

We may be in danger of going over ground that we have already trodden on, but it cannot be trodden on too often. These two amendments deal with the importance of training those who exercise powers. The clause deals with the designation of general customs officials, and we seek to ensure that only properly trained immigration officers may be designated as general customs officials. There were good debates about this in the other place.

The Minister has told us in detail what powers there are and what training is given, and that has been helpful, but it is relevant to consider the wider point that we need a consistent approach at our borders, including various ports and airports. In that context, the hon. Member for Midlothian’s intervention was very good. Even before we get to the debate about the border police, we are anxious that there should be proper training, so that we can be confident that the people who exercise powers do so well. We also want the powers to be exercised consistently at all places. A consideration that is always uppermost in our mind is the opportunity for immigration and customs crimes to be committed relatively easily at some smaller ports and airports, which inevitably do not have the permanent infrastructure of those at Heathrow, Dover, Harwich and the big airports in Scotland to which he referred. In seeking to assure ourselves that there is adequate training, we are conscious that we want the job to become perhaps slightly more difficult in future because we will need a more mobile force than we have at present.

We will need part of the Border Agency or the border police, whichever institution is actually carrying out those important functions. We will want people who are not just sitting in one place, but are able to get out and plug the loopholes that we all know are there and, more dangerously, that some of the world’s international criminals know are there. I dare say that I am telling the Minister nothing he does not already know, because I am sure that he is as concerned as I am about the possible use of small ports and airports for smuggling and immigration crime.

I would like to put to the Minister one of the points made in another place by my noble Friend Lady Hanham, who, when discussing the provision allowing powers to be given to “any other official” of the Secretary of State, asked what kind of considerations would be used in such cases, because an extremely wide power is being slipped through in the clause. Having the ability simply to add the function of customs official to any official of the Secretary of State makes one’s eyebrows rise. In practice, we all know, or at least hope, that Ministers and the senior management of the agency would seek to add those functions only for appropriate officials, but a degree of reassurance from the Minister would be helpful at this stage in our scrutiny.

The Minister has already said that 4,500 Revenue and Customs officers are being transferred and will no longer be officers of HMRC, and that part of the clause’s purpose is to redesignate them so that they can continue to exercise the customs functions they currently carry out in addition to the immigration functions he is seeking to add. We have heard about the training of immigration officers, so it would be useful to have detail about the training of the customs officers as well. In another place the Minister’s noble Friend Lord West said that he did not believe it was necessary to appoint those who transfer from HMRC as immigration officers first. I hope that the Minster will expand on why the Government believe that that is unnecessary, because it would clearly act as some kind of check.

While we are discussing the amendment, this would be an appropriate time for the Minister to give us an update on the progress of the merger of the organisations, because he will be more aware than I am that HMRC and UKBA are two very separate organisations with different cultures that he is trying to bring together. One hears of stresses and strains, which is not surprising and is entirely normal, but certainly those stresses and strains are there. While we are passing the legislation that will make permanent that merger and put it on a statutory footing, it would be instructive for the Committee to know what is happening on the ground. Are those different groups of people, with their different training, backgrounds and organisational cultures, actually working together smoothly, or could that be best described as a work in progress? Many key practical issues are brought up by these apparently minor amendments, so I hope that the Minister can reassure the Committee that all proper things are being done to ensure that the borders are being made more secure on the ground.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise not to go over the ground that has been covered in relation to training aspects but to pick up on a point that I am sure the Minister has been lobbied about by the Public and Commercial Services Union. What is the definition of an official of the Secretary of State? Clearly, the PCSU has concerns that an official could include, for instance, a contractor working for the Secretary of State. It might be helpful for Members if the Minister clarified whether the word “official” could include private contractors recruited by the Government to work within that department.

Phil Woolas (Labour, Oldham East and Saddleworth)

On the last point, the answer is no. The officials who can be designated are customs and immigration officials. I hope that reassures the hon. Gentleman.

On the process of designating, clause 3, amended or otherwise, will allow the Home Secretary to designate as general customs officials immigration officers, former HMRC officers transferred to the Home Office under the provisions of the Bill and any other of his officials. As I mentioned during the debate on clause 1, they will have the same functions and powers in relation to general customs matters as an officer of HMRC. They will also carry out the Secretary of State’s general customs function. The purpose is to allow front-line officials of the Border Agency the powers necessary to exercise both customs and immigration functions. As I have said, we believe that that will enhance our capacity in the national interest.

Subsection 3 makes it clear that the Carltona principle, in accordance with which the Secretary of State’s functions may be exercised by any of his officials, is preserved. It is the principle whereby powers of the Secretary of State that are delegated are deemed to be powers. On the specific point about the amendment, because general customs officials will have the same functions and powers in relation to general customs matters as an officer of HMRC would have, and may also carry out the Secretary of State’s general customs functions, by virtue of the provisions in the Bill, some 4,500 officers—the hon. Member for Ashford is right about that figure—of HMRC will be transferred to the UK Border Agency in August, subject to the will of Parliament and the discussion of the Bill. The hon. Gentleman teased me about a simplification Bill. One reason why we introduced this small Bill is that we need statutory powers to put things on a proper footing. At the moment, we are in a halfway house. On progress in the other direction, we are bringing together the two bodies under a joint management structure. To date, about 2,000 immigration officers have been trained in customs matters as we increase capacity.

To finish my point about the amendments, limiting the designation of general customs officials to immigration officers would mean that all customs officers transferring would first have to be appointed as immigration officers so that they could then be appointed as general customs officers in order to get on with their customs work. I accept that the hon. Gentleman seeks clarification on how that will work, but I hope he accepts that if we did what the amendment proposes, we would add to the bureaucracy.

Amendment 3 could prevent the Secretary of State from designating former HMRC officers as general customs officers immediately on transfer to UKBA, which would obviously limit their ability to carry out their functions, and it would require the Secretary of State to appoint all such officials as immigration officers even where they did not have the training to exercise immigration functions, or indeed the need to exercise immigration functions in regard to larger ports.

On Amendment 4, subsection (3) of the clause makes it clear that, notwithstanding the exercise of the Secretary of State’s general customs functions by general customs officials, the Carltona principle applies. I hope the Committee will appreciate the importance of that. The Secretary of State’s functions may be exercised by any of his officials and subsection (3) ensures that this important principle is preserved in respect of all the Secretary of State’s functions.

In light of that explanation, I hope that the Committee will accept the good sense of what I am proposing.

Damian Green (Conservative, Ashford)

I certainly accept the Minister’s good intentions. I observe that he did not respond to my invitation to tell us how things are going on the ground. I take silence to indicate a lack of profound happiness with the progress of the merger so far.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman should take it as fear of the Chairman’s wrath rather than anything to do with the implementation of the merger.

Nicholas Winterton (Conservative, Macclesfield)

Very wise.

Damian Green (Conservative, Ashford)

I am sure we all live in permanent fear of the Chairman’s wrath. Nevertheless, as the Minister knows, this provision is one of the more difficult parts of the exercise and although we can sit here and pass legislation and discuss it in great detail, it is perhaps a lesson for all of us that the lives of real people are being affected by it so we should be concerned about the efficacy with which they are doing their jobs.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

We may require the indulgence of the Chairman for a couple of seconds, but the hon. Member for Ashford would probably agree that given that we all support the integration of these different powers, it would be appropriate for the Minister to highlight now whether there are significant personnel issues, because that could damage the project in its entirety.

Damian Green (Conservative, Ashford)

That is a legitimate point. As the Minister has already observed, this is not an issue on which there is any dividing principle. We all agree that the mutual use of powers among those who come from different organisations historically will improve the safety and security of our borders, but the transitional phase will be difficult. If it is proving more difficult than we thought, the Committee should be made aware of that. It would be—or would have been, if the moment has passed—appropriate therefore for the Minister to do that. All we can do under your iron rule, Sir Nicholas, is to observe that we have had no particular reassurances about that.

I do not propose to press the amendments to a vote, but I hope that at the forefront of Ministers’ minds is our continuing concern that the exercising of great powers by officers of the state should always be accompanied by very strict training regimes and permanent observation, and that we are not giving inappropriate powers to people who may not have the skills and sensitivity to use them. There is a very serious underlying principle: it is relatively easy for Ministers to say “My job is to increase security in this area and therefore I will take whatever measures need to be taken to do that.” That always needs to be balanced against the appropriate use of those powers by the appropriate people.

The purpose of the amendments was to flag up that that important balance should always be there, not only in the mind of the Minister, but if possible, in the Bill. Although individual Ministers may have good intent, Ministers come and go, and future Governments may not operate under the same constraints. It is thus extremely important that the Bill contains all the safeguards that are needed. None the less, having said that, I beg to ask leave to withdraw the amendment.

Clause 4

Damian Green (Conservative, Ashford)

I beg to move amendment 5, in clause 4, page 4, line 29, at end insert—

‘(3A) Any designation made under section 3 must be approved by a resolution of both Houses of Parliament.’.

This is a short amendment. I will not weary the Committee by repeating the speech that I made earlier about the importance of parliamentary scrutiny, but in essence the same argument applies, and I seek to probe the Minister’s attitude. As hon. Members will see, this is the designation clause. It deals with the different facts that allow a designation to be made, the limits that are put on it, the fact that it can be permanent or for a specified period, and the functions that can be conferred through a designation.

The key point is that the

“power to designate, or to withdraw or vary a designation”—

in other words, all the powers associated with the clause—

“is exercised by the Secretary of State giving notice to the official in question.”

In essence, the Secretary of State is given powers to do all the things that Secretaries of State do in such cases.

In the amendment, we are once again seeking a precautionary measure. I hope, and indeed expect, that the provisions would almost never need to be exercised, but our proposals would provide a further small check so that any action proposed under the wide powers that the clause gives the Secretary of State could be undertaken only with the Parliament’s approval.

I put that in the context of the relatively broad nature of the Government’s plans in this area. We are beginning to tease out some of the details. The Bill gives the Secretary of State very broad powers, and it is not immediately apparent—certainly not from the Bill—how they will be exercised in practice and in detail. The amendment would simply give Parliament some say and some check on how those powers are worked out and how they will operate in practice.

If the current or any future Secretary of State exercises the powers of designation in a reasonable and sensible way, the power in the amendment need never be brought into practical use. However, it would be useful to have it, and it would, once again, increase Parliament’s ability to scrutinise the effects of the Bill.

Phil Woolas (Labour, Oldham East and Saddleworth)

As the Committee might expect, I ask it to resist the amendment. Again, I appreciate the hon. Gentleman’s intent. I study Opposition amendments to Bills carefully, and this one falls into the category of “can’t think of anything to say, so we’ll get Parliament to approve it.”

The fact of the matter is that the designation power under the clause allows the Secretary of State—but, in practice, the management of the UK Border Agency—to designate officials. It is intended to provide flexibility in the designation of general customs officials. Again, we are not talking about revenue powers. In practice, not all our officials will need all the powers of an HMRC officer. Some will be employed on functions that will not require them to have a full set of powers; for example, officials responsible for the customs clearance of international post and parcels would not require the powers of questioning and/or of searching passengers, for obvious reasons.

Accordingly, we need some flexibility in that regard. The effect of the amendment would be that the designation of all our officials would have to come before Parliament. We have 4,500 HMRC officials moving over, and we already have 2,000 immigration officials. I suggest to the Committee that we really do not want to have to do that job; it is the job of the Executive, not the legislature. The power is there in the Bill. To be fair, the intent of the hon. Member for Ashford was that the House could have that power. The effect of his amendment would be to enforce the House’s use of that power. I ask that we have the powers to designate officials but that we do not give that to ourselves to do in the House.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for his explanation, although he is being dangerously provocative when he suggests that we tabled the amendment because we could not think of anything else. If he is challenging me to find amendments on clauses for which we have not yet found amendments, he can rest assured that we can be extremely fertile in that field if necessary. As ever, Sir Nicholas, you can be reassured that I seek only to improve the legislation. There are clauses that are improved by amending and clauses on which we are happy to have a clause stand part debate.

I take the Minister’s point that there are things that the Executive should do and things that the legislature should do. Nevertheless, it is worth making the general point that the balance between the Executive and the legislature is out of joint and, in a sense, it is relatively easy for people to make the statement that we need grand schemes of reform to change it, but often it is the use of the process that does not work. It is in the detailed scrutiny of Bills that the legislature can make some difference, but we seek to do so not often enough, and that is part of the problem. I appreciate that I am now treading towards the tram lines of what is acceptable, so I beg to ask leave to withdraw the amendment.

Clause 5

Clause 6

Damian Green (Conservative, Ashford)

I beg to move amendment 6, in clause 6, page 5, line 3, leave out ‘must’ and insert ‘may’.

The clause deals with the new post of director of border revenue. On the surface, the purpose of the amendment is to give Ministers a flexibility that they may not want, but we also want to tease out the full powers of that new post and the practicalities behind it.

We made some progress in the Lords, where there was a full debate about the new post, which is clearly hugely important. It is designated by the Secretary of State to exercise the functions of border revenue and also to carry out the general customs functions—I take the point the Minister made earlier about how important it is to distinguish the two. Clearly, the director will be the most important person in the whole new regime that this part of the Bill sets up, apart from the Secretary of State himself.

One of the questions I hope the Minister will address is whether it is necessary or contingent that the director of border revenue should always be the head of UKBA, because one of the things that was illuminated in the Lords debate was that that was the intention, and that Lin Homer would be appointed to the post. But it was left unclear as to whether that was a simple convenience at the time, and that she would add that extra role to her accounting officer role in UKBA, or whether it was always envisaged that they would be the same person.

I draw the Minister’s attention to that apparently procedural point because it seems to me to be quite important, because the fluidity of the organisational structure of our immigration system has been extraordinary over the past few years and there may be no reason to believe it will be less so in the future. In the three and a half years I have been my party’s immigration spokesman, we have moved from the Immigration and Nationality Department to the Border and Immigration Agency to the shadow UKBA, and now, from this April, to UKBA. That is four different structures in less than four years. The structure for immigration changes as often as the Home Secretary does; I am now shadowing my fourth Home Secretary as well, although—I am happy to report from the Minister’s point of view—only my third immigration Minister. The job of immigration Minister is very slightly safer than that of Home Secretary.

Behind all that flux is the reason why I asked the question. It is a serious question as to whether it is necessary that the head of UKBA will always be the director of border revenue, because the post of the head of UKBA might itself change radically in future. In particular, if and when we have a fully integrated border police, one can imagine that there will be consequential effects on the organisation within UKBA which might mean that the two posts need not be coterminous.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

If there are to be two different people, it would be useful for the taxpayer to know what the financial implications are.

Damian Green (Conservative, Ashford)

Indeed. That is one of the questions I am hoping that the Minister can address, because if we are, in effect, creating a post that, in the end, becomes a dignified part of the constitution, whether we have a separate person doing it at some vast expense is a very interesting question.

In the debate in the other place, Lord West said that the Government wanted to ensure that there was a clear, single and unified command structure—something suitably military for Lord West.

Phil Woolas (Labour, Oldham East and Saddleworth)

That is what it says here too.

Damian Green (Conservative, Ashford)

I am glad to hear that the Government are consistent and will say the same thing in this debate as they said several weeks ago in another place. But, in all seriousness, if that is what the Government are looking for—who could disagree with that as an aim?—it is important to know which functions of the director of border revenue may be different from those of the director of UKBA. The two posts can be brought together under Lin Homer, which seems appropriate, but I am not just staring into a crystal ball when I say that the functions change. I have observed them changing considerably, in the relatively recent past. If, in particular, we move towards a unified border police force, it is easy to imagine that those functions will change quite radically in the future as well. Therefore, before we set up the post, the Committee deserves quite a lot more detail and clarity about what it is meant to achieve.

Essentially the question is whether the post is just a name. Is it required because there is a need for a director of revenue and an accounting officer, and someone formally responsible for all the money? Alternatively, is it envisaged as a new post, with new powers and new functions? I would not expect those to be set out in the Bill, but it would be useful for the House to know whether the post is essentially a sinecure that comes along with other jobs that people do, or a real job in its own right—or could the Minister envisage circumstances in which the former might become the latter in the future? Before we pass the clause it is important to tease out some of the details, and I hope that the Minister can do that.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I support many of the points that have been made about seeking greater clarification of what the director’s responsibilities will be; whether there is simply a requirement that someone should be called the director; whether it could potentially be a different person, and the financial implications of that; and whether the role is of such scale and significance as to imply the need to advertise the position of director, rather than simply passing the responsibility on to Lin Homer, as has been suggested. Any clarification that the Minister can give will be gratefully received.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am grateful for the perfectly reasonable points that hon. Members have made. My approach was to give the Committee assurances that the position was required to maintain the principle that the powers were not with the Minister. I had not covered the point from the other end of the telescope, by dealing with the arrangements inside UKBA.

The United Kingdom Government receive about £22 billion from tax revenue collected at the border each year. That figure is rising, even in the current economic circumstances. It represents about 5 per cent. of the total tax take of the UK Border Agency. That is why the immigration Minister is also a Treasury Minister. The public may be interested to learn that included within that £22 billion about £2 billion is collected on behalf of the European Union. Thus we are dealing with significant sums of money. Clause 6 is intended to maintain the important principle that the director of revenue is not a Minister. This is a question of customs revenue functions. Those functions are currently undertaken by the commissioners of Her Majesty’s Revenue and Customs, so we are transferring them to the new director.

It is our policy and intention to appoint the chief executive of UKBA as the director of border revenue. That position is a civil service position and therefore maintains the separation. The Bill does not designate that the director must be the chief executive of the United Kingdom Border Agency. It says in my briefing notes that that is partly because that structure may not be permanent, to answer the point made by the hon. Member for Ashford, who, I am surprised to note, objects to evolution rather than radical reform as a principle. His police proposals would cause further radical reform. However, that designation is not in the Bill for the very reason that he highlighted. We would not want to have to come back in several years to change it.

In practice, a new job is not required—it is not an additional position, but a legal power and responsibility that the chief executive should have, the terms and conditions for whom are a matter for the permanent secretary and not for Ministers, in line with those principles, although I am not aware of any proposals to change.

The amendment is successful in teasing out such points, but I suspect that the hon. Gentleman does not want it passed, because that would allow the Home Secretary to become the director of border revenue, which I promise that the hon. Gentleman does not want. I do not know whether my new boss wants that—I have not talked to him about it—but I suspect that he would not, being the decent bloke that he is. I ask Hansard not to put that last phrase in, please, in case he reads it. My right hon. Friend the new Home Secretary does not want those powers. I ask for the amendment to be withdrawn.

Damian Green (Conservative, Ashford)

I am happy to assure the Minister that I am neither against evolution nor, when necessary, radical reform. An incoming Conservative Government would happily introduce radical reform in areas where it is needed. We have always done so and will continue to do so. Our borders are one area where we believe that radical reform is needed, because there have been many failures over the past few years.

I take the Minister’s point and can see the sense of it. We do not want to have the director of border revenue receiving all that money, on behalf of the UK Government and of the EU as well—it should be the Home Secretary; he is right. I did not know why he was afraid of having that on the record if the Minister regards the Home Secretary as a decent bloke—

Phil Woolas (Labour, Oldham East and Saddleworth)

It was the word “bloke”—I meant my right hon. Friend.

Damian Green (Conservative, Ashford)

I see. The right hon. Gentleman, the new Home Secretary, is indeed a decent human being. I think we can all agree on that. I hope that that nomenclature suffices both for Hansard and, perhaps more importantly, for the Home Secretary.

I also agree with the Minister in not wishing to foist on my hon. Friend, the shadow Home Secretary, should he become Home Secretary at some time in the future, the job of director of border revenue. That seems extremely sensible. As the Minister said, the amendment has achieved what I wished it to achieve—it has teased out a certain amount of clarity on the purpose of the role and whether it is necessarily that of the chief executive of UKBA. I am glad that the Minister and his briefing recognise that there may well be changes to come in the organisation of the institutions responsible for border control.

In that spirit of cross-party good will, I beg to ask leave to withdraw the amendment.

Clause 7

Damian Green (Conservative, Ashford)

On a point of order, Sir Nicholas.

Nicholas Winterton (Conservative, Macclesfield)

I have no idea what it might be, but I am happy to take it.

Damian Green (Conservative, Ashford)

I sensed from movement that the Minister was about to move a clause stand part motion for clause 8. I simply wished to establish if that were the case—there are many clauses in the Bill for which neither we nor the Government have tabled an amendment. In that circumstance, is it still possible to have clause stand part debates?

Nicholas Winterton (Conservative, Macclesfield)

To the very experienced Member of this House, the Member for Ashford, I say that there is always the possibility of having a clause stand part debate. I would say to members of the Committee that if they wish to have a clause stand part debate then they should rise to their feet in a very positive way, so that the Chairman may appreciate that they wish to contribute. There was no more than a quiver from the Minister. He did not rise to his feet, and therefore I continued to put the question that that particular clause stand part of the Bill. I give the very positive reassurance to the hon. Member for Ashford that if anyone wishes to have a clause stand part debate then I am not prepared to stand against them—it is my duty to call them, so that there may be a clause stand part debate.

Clause 9

Damian Green (Conservative, Ashford)

I beg to move amendment 7, in clause 9, page 6, line 37, leave out ‘make arrangements to delegate’ and insert

‘designate by approval of the Secretary of State’.

I rise very positively to my feet to move this amendment, Sir Nicholas.

The purpose of the amendment is to make a subtle change. The Minister has already referred to the Carltona principle—it is a good party game to play at the Committee stage of any Bill to see how far you can get through before somebody mentions the Carltona principle. Those of us who do these things regularly can remember from year to year what it is, but I suspect that if we conducted a quiz among Members, many of them would not necessarily know what the Carltona principle is. It dates back to 1943—I see that I am causing puzzlement. I have a briefing that shows that:

“The case most often cited is Carltona Ltd v Commissioners of Works 1943.”

It is an important and sensible principle. It strikes me as bizarre that the ability to transfer powers to an official from a Secretary of State had not been firmly established before 1943—there had been Government Departments for more than a century before then. We might go a long way off-piste musing on, first, the relationship between Ministers and their officials in earlier times and, secondly, the efficacy of Government when there were fewer of either Ministers or officials and this country ran half the globe. I am getting slightly off the subject here.

Let me move back to the powers held by the director of border revenue and the possibility of their transference to another official. That is slightly different from the straightforward transfer of powers from the Secretary of State to other officials. Clause 9 refers to the director of border revenue delegating powers. This amendment seeks to allow that to happen—it is entirely sensible and unremarkable that that should happen—but only with the approval of the Secretary of State. It is limiting the power of the director of border revenue to delegate functions to those conferred by the Bill. The purpose of this is not particularly to modify the powers of the director, but to probe the other functions it is intended to confer on the director. We have had one helpful debate about the role of the director vis-Ă -vis other parts of the immigration system, but this would be an appropriate point in the passage of the Bill to explore the full range of the director’s powers. It is perfectly reasonable to be wary of giving powers to an official if we are not sure of the full raft of powers that that official will have.

It is convenient to have reached this debate, in which we seek to insert the Secretary of State into the process to ensure that we are not giving too much power to an official when in some cases it would be better exercised by the political leadership, so that there is some kind of democratic accountability to this place in the powers of the director of border revenue.

Although this small amendment deals with only one aspect of the director’s powers, I hope that the Minister will take it as an invitation to spread a bit more widely and explain to us the full range of the director’s powers as well, obviously, as the important point about why the Secretary of State should not have some say when powers are delegated further down the organisation.

Phil Woolas (Labour, Oldham East and Saddleworth)

I rise positively, Sir Nicholas, and not with a quiver to reply to this debate. It is the responsibility of the Minister to put on the record for the Committee and for Hansard, where it is necessary, the intent of the clause. I draw the Committee’s attention to the fact that my noble Friend was able to do so for clause 8 in the other place. Therefore, that explains my quiver. I was trying to be helpful but it was not necessary because of that.

Let me address directly the delegation of the director’s functions to officials, which clause 9 enables. This practice allows operational flexibility and is necessary. It is already the case with officials in their relationship with the commissioners. Of course, in practice, most of the functions of the director are undertaken by officials under the designation arrangements set out in clause 11. Only designated officials will be able to exercise the front-line enforcement powers currently relied on by officers of Her Majesty’s Revenue and Customs at the border to tackle smuggling. Those powers are not exercisable by the director and are therefore subject to the delegation power.

The amendment would remove the power to delegate and replace it with a power to designate a function with the approval of the Secretary of State. It seems likely—the hon. Member for Ashford has confirmed this—that the amendment is intended to make the delegation of functions by the director subject to approval by the Secretary of State, or at least to restrict delegation of functions to those who are designated by the Secretary of State. That would be inappropriate and unnecessary. Let me quickly explain why.

In exercising revenue functions, the director of border revenue is not subject to the direction of the Home Secretary. The director acts independently but, like HMRC, is subject to the general directions of the Treasury. The director’s functions will be exercisable by designated customs and revenue officials under clause 11, as I said, but it is right that the director should also be able to delegate her functions to others, including those in the UK Border Agency.

At the same time, clause 9 provides some fundamental safeguards. The director must monitor the exercise of any delegated function and the person exercising such functions must comply with their direction. In that context, if there were a need to oversee the director’s exercise of the power to delegate, that role would fall to the Treasury, not the Secretary of State.

Damian Green (Conservative, Ashford)

I quite take the Minister’s point that the amendment might be defective in that respect. Is he saying that it would be less defective had we inserted “the Chancellor of the Exchequer” rather than “the Secretary of State”? I dare say he would still have opposed it.

Phil Woolas (Labour, Oldham East and Saddleworth)

Had I risen positively and not with a quiver, I would already have answered that question—sort of. In the revenue functions, the director of border revenue is accountable to the policies of the commissioners, who act on the policy of the Chancellor. The Budget is traditionally the device by which that policy is set in this country. In that regard, the answer is indirectly yes. That explains why the Minister for Borders and Immigration is also a Treasury Minister for the purposes of customs and revenue. I would probably have been advised to resist the amendment in any event, but I would have done so very gently.

Damian Green (Conservative, Ashford)

I am delighted that we have teased out not just why the Minister opposes the amendment, but the degree of gentleness with which he wishes to treat it. His explanation is perfectly reasonable so I beg to ask leave to withdraw the amendment.

Clause 10

Clause 13

Clause 14

Damian Green (Conservative, Ashford)

I beg to move amendment 9, in clause 14, page 10, line 7, at end add—

‘(8) Nothing in this Act shall enable any of the officers designated under this Part to use any personal data of UK citizens to restrict their right to enter or leave the United Kingdom for legitimate purposes.’.

We now come to a more contentious part of the Bill dealing with the use and disclosure of information. The Minister will be aware that this matter is extremely fraught. Conservative Members think that it is hugely important and that far too much of the relevant Home Office policy is proceeding in the wrong direction, with a dangerous tendency to collect too much information and to give the various organs of the state too much power to share it with one another without the permission of the person about whom the information was collected. Through amendment 9 and, even more so, amendments 10 to 12, we seek either to probe or change Government policy.

It is arresting to think that an amendment need be tabled to a Bill to prevent legislation from being used to bar British citizens from entering or leaving their own country for legitimate purposes, but we seek to do just that. Essentially, our worry is that the powers taken by the Government in this clause might allow them to do precisely that. The Bill does not make clear how UKBA intends to use the data collected from this function in conjunction with the e-Borders function, which is also being introduced. I would be interested to hear what the Minister has to say about databases and information sharing. He will be aware how much information will be available through the e-Borders system and the customs information being collected under clause 14, which will provide the Government with more information that presumably will be recorded. This is a classic example of where two sets of information collected perfectly properly might be combined and then used improperly.

It would be helpful to the Committee if the Minister could set out the extent of the information that could be brought together partly under the aegis of clause 14. As well as the provisions in the Bill, the e-Borders database can track and store international travel records, names, addresses, telephone numbers, seat reservations, travel itineraries and, potentially, credit card details. I am sure that the Minister will be proud to tell us that, when it is fully up and running, the system will monitor all 250 million journeys made in and out of this country each year. He will be aware that the Government propose, rather controversially, to store the data for up to 10 years. We think that that is excessive and that some of the data being collected will be ineffective in tackling cross-border crime and hugely intrusive for the entirely innocent. It will also be massively expensive.

It is even more toxic, however, to combine that with the use and disclosure of customs information under clause 14, because huge questions remain to be answered—on top of those about e-Borders—about the intersection of these different systems. The intrusion of privacy of anyone, even the most innocent British traveller crossing their own borders, is going up and up. The amount of information that will be collected and stored for many years by the Government goes up with every piece of legislation. It is not the appropriate time or place to debate the e-Borders system—the Minister knows that we think other countries have implemented similar but better systems in far shorter periods.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is the best in the world. People come here to look at it.

Damian Green (Conservative, Ashford)

The Minister says that it is the best in the world. I dare say that some other countries come to look in at it, and I would see what they say when they have left. The specific problem with the clause is that yet again, the Government are falling through the trap of making the system as intrusive as possible for the respectable traveller, whether coming to Britain or taking a trip away from here, while not necessarily collecting all the information that will be needed to track our professional criminals or terrorists. Essentially, my fear is that we are setting up the worst of all worlds, where the general aggregation of private information about entirely innocent British citizens will be more intrusive than any other regime in the democratic world. At the same time, it is not at all clear that those who quite properly should be stopped and checked and have their details down will be caught.

One of the paradoxes that the Minister needs to address is the sheer weight of information that is being collected, and the sheer length of time that it is being collected for, which may well militate against the effective action against those who we all want to stop. We have seen the manifold failures of databases—again, this is not the appropriate clause under which to discuss the matter—and it must have impinged on the Government now that simply collecting more information about entirely innocent journeys and people and keeping it for longer is not the most effective way of making our borders secure. It is not, in this context, the best way of ensuring that we get the appropriate customs information and then using that information to contribute to the general safety of the border.

As people increasingly understand that point, those who find their journeys made more difficult—they might have to queue for longer—or feel that they have to give up unnecessary information to immigration and customs officials, their resentment about the queues and the information that they are giving will increase. They will want to know that every piece of information collected is necessary, and also what is going to happen to that information, even if it is not left on a disc or a laptop stuck on a train by somebody going home at night. Who in Government has access to it? It is precisely apparently harmless clauses in Bills such as this one, about the use and disclosure of customs information, that allow information to be collected and spread. That should ring alarm bells in anyone who cares about privacy.

I invite members of the Committee who have not necessarily studied every last comma of the Bill to look at the clause very carefully, and look at the powers that are being given to officials to collect and disseminate information. We are now entering a part of the Bill that is potentially quite dangerous for the future of the privacy of innocent British citizens and for the effectiveness of the attack on immigration and customs crime, which is the purpose of this part of the Bill. I hope—but not very expectantly—that perhaps Minister can reassure me on those points.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I welcome the opportunity for us to examine a new area of the Bill that I hope will allow us, without stepping too far away from its content, to touch briefly on issues that many hon. Members from both sides of the House have raised relating to the use and disclosure of information. Given the Government’s preference for setting up large databases, this may give the Minister another opportunity to jump up and ask, “Are the Liberal Democrats in favour of large databases or against them?” He has to acknowledge that Liberal Democrats, as a party, are not luddites. Therefore we do not necessarily have any objections in principle to large databases. However, we are concerned about the information that is being collected in such databases, the duration for which it will be kept and the controls that exist in respect of access to that data: who has access to it and whether it is appropriate for them to have it, and so on. We also have significant concerns about the potential for large chunks of data to be lost. It is appropriate for the Minister to respond to those concerns in respect of this part of the Bill and to provide some reassurances about the safeguards that will be in place to ensure that these data are managed, the minimal nature of the data that will be collected and the maximum controls to safeguard those data and restrict access to them.

We are becoming an increasingly surveyed society. Although it has not yet been confirmed that we are a surveillance society, with the number of CCTV cameras, databases and different ways of collecting data on people that are being rolled out, any opportunity to try to redress that balance through this Bill as it relates to the use and disclosure of information, including the use and disclosure of customs information, is helpful. I will listen carefully to what the Minister is about to say about the safeguards.

Phil Woolas (Labour, Oldham East and Saddleworth)

I understand the intent of the hon. Member for Carshalton and Wallington in seeking safeguards.

Let me start my reassurances by saying that the clause relates to the powers that Revenue and Customs and immigration officers have already. The clause is about how they share information with each other for their own purposes. This is not, as the hon. Member for Ashford said, about the electronic borders system, but about how customs and immigration officials hand information to each other, particularly with regard to the purposes of prosecution of customs and immigration offences.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the Minister for confirming that that is what this process is about. However, does he agree that it is precisely at a moment of transition where structures and procedures are being changed that the potential for breaches, for instance, is at its greatest?

Phil Woolas (Labour, Oldham East and Saddleworth)

I agree; that is my experience. That is why the hon. Gentleman is right to press me on that point. However, let me build on my reassurances, because they are important.

To understand the purpose of the clause and see who it applies to, Committee members have to look specifically at clause 14(2) and at clause 15, with its prohibition on disclosure of personal customs information, which is the other side of the coin. My reassurances are not just contained in clause 14, but are built upon in later clauses. In relation to the exercise of the existing functions, the provision is an essential tool in support of law enforcement, national security and securing the border effectively. It is also necessary to be able to secure the optimum development of the officers involved.

We talked earlier about the benefits of coming together, which means that officers need to share information in respect of certain cases. That is the purpose of the clause. However, there is a restriction and prohibition on the disclosure of information imposed elsewhere in part 1 of the Bill and in other enactments, and in any agreement to which the United Kingdom is party. Those restrictions and prohibitions will be particularly important in relation to personal customs information.

The provisions in the relevant clauses apply only to customs information acquired by the UK Border Agency from sources other than Revenue and Customs or the Revenue and Customs Prosecutions Office. There is a separate confidentiality framework for the use and disclosure of information provided by Revenue and Customs and the Revenue and Customs Prosecutions Office, which is set out in existing legislation including, in particular, as the hon. Member for Ashford will remember, the UK Borders Act 2007.

All information within the UK Border Agency is shared, held and retained in line with the provisions of the Data Protection Act 1998. The agency has implemented enhanced procedures to protect personal data in the light of the recommendations of the review of information handling. We have adopted those recommendations, which include the appointment of a senior information risk owner and the use of encrypted laptops and removal media only, if they contain personal data and are to be taken outside secure premises. A new centralised encryption service, a new system for reporting security instances and an information charter have been established.

Let me emphasise that my assurances relate to the wider database that does not leave the premises and can only be used by us, as opposed to the carrier information that the hon. Member for Ashford mentioned. That is not directly relevant to the clause, which is about sharing customs information inside the agency.

Amendment 9 replicates an amendment tabled in the other place, during Report stage. First, it probes the nature of the information that it is envisaged the UK Border Agency will acquire given the provisions of the Bill, and the purposes for which that information might be used. Secondly, through the amendment the hon. Member for Ashford probes the e-Borders programme once again. However, it would prevent a designated customs official from using the personal data of a UK citizen to restrict that citizen’s right to enter or leave the UK where there is an apparently legitimate purpose for the journey.

In layperson’s terms, the issue before the Committee is this: if a person wanted for criminal purposes is leaving or entering the country, where that journey is for legitimate purposes, do the officials have the power to interfere? We argue that they do. Let me use an extreme example to illustrate my point. If a wanted terrorist is leaving the country to genuinely go on holiday to Majorca, I suggest that you, Sir Nicholas, would want me to instruct my officials to arrest him and not let him go because he is making a legitimate journey. We come to the heart of the matter. I respect the hon. Gentleman’s saying that legitimate British holidaymakers should not be interfered with—quite right, too—but we need powers and information to stop criminal activity.

The hon. Gentleman is looking perplexed.

Damian Green (Conservative, Ashford)

The amendment talks about officers designated under this part of the Bill, which does not include police officers. If a suspected terrorist was going across the borders, I imagine that the police would have something to say about that.

Phil Woolas (Labour, Oldham East and Saddleworth)

Ah, the trap has been laid and the quarry has fallen into it. So are my immigration and customs officials not to seize that person and hold them in the holding centre, after which the police would be called, as is so at the moment?

Nicholas Winterton (Conservative, Macclesfield)

Order. I hesitate to interrupt just as the excitement is mounting, but it is 1 pm. However, before I adjourn the Committee, can I advise all hon. Members that when they have left the room will be locked, so any papers and other documents and possessions can be left here in the knowledge that they will be secure and safe?

Phil Woolas (Labour, Oldham East and Saddleworth)

It is a pleasure to serve under your chairmanship, Miss Begg, on this important Bill.

Amendment 9 would prevent a designated customs official from using the personal data of a United Kingdom citizen to restrict that citizen’s right to enter or leave the UK where there is an apparently legitimate purpose for the journey. In other words, the amendment tabled by the hon. Member for Ashford probes the circumstances under which UK Border Agency officials could stop a legitimate journey by a UK citizen, and the nature of the information that could be used to apprehend or inspect a person.

The provision is an essential tool in support of law enforcement and is key to the agency being able to secure the optimal deployment of its resources across all of its functions. However, the hon. Gentleman may be reassured to know that the provision is subject to any restriction or prohibition on the disclosure of information imposed in part 1 or in any other enactment or agreement to which the UK is party. Those restrictions and prohibitions will be particularly important for personal customs information.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I would like a little more clarification on the circumstances in which action could be taken. One can clearly understand the case of a terrorist to which the Minister referred, but what level of offence is covered by the provision? Is non-payment of a parking fine something that might lead to action? Will he clarify the level at which the provision will be enforced?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman raises a good point, which was also made in the other place. The information to which I refer is customs information, but he refers to a wider point, which is very valid but is outside the clause’s scope, relating to information from watch lists activity. Parking or speeding offences are certainly not covered, otherwise I imagine that the immigration Minister would be in serious trouble at this point in time—although perhaps not at another point in time. More seriously, the watch lists relate to the criminal watch lists from our security forces, but they do not relate to the aspect of information under discussion. The hon. Gentleman’s point is valid, but it is not directly relevant.

Damian Green (Conservative, Ashford)

Welcome to the Chair, Miss Begg. I would like to pick up on the point made by the hon. Member for Carshalton and Wallington. It is ironic that he used the example of parking fines. Perhaps he, like me, has spent part of the past couple of hours looking at the ID card statutory instruments that we will debate next week in which the Department for Transport is specifically mentioned as one of the Departments that, if the provisions are passed, will be able to use information from ID cards for its own purposes. The Minister is right that the hon. Gentleman’s point may not be directly relevant to amendment 9, but the hon. Member for Carshalton and Wallington is spot on that the Government plan to collect private information about people and then use it to perhaps enforce things such as parking fines. I suspect that the Minister and I will conduct that debate next week.

The Minister has sought to reassure me about clause 14. I should point out, again in relation to the intervention by the hon. Member for Carshalton and Wallington, that amendment 9 specifically mentions

“officers designated under this Part to use any personal data of UK citizens”,

so the clause does not cover customs information only. Just before lunch, the Minister said that he felt my argument had a weakness because it suggested that the police could not be engaged by immigration officers. If we had not been interrupted, I would have replied that he was making an ideal argument for a unified border police force. In the case he specifically advanced of an anti-terrorist operation the police would be involved and therefore the powers would be police powers. At that point, his argument falls, inasmuch as it has validity; it is precisely an argument for a border police and for those police powers and all the police training to be available to a wider set of officers than is currently the case.

As we have said several times over the course of day, this is a debate for another time later in Committee. I am not entirely convinced and reassured by the Minister’s arguments. The powers given for using and disclosing information in this clause are potentially dangerous. Not unfairly, he pointed to other clauses where there is a prohibition on disclosure of personal customs information—for example, the next clause that we will discuss. Nevertheless, many of those are hedged around with restrictions, for instance in clause 17, that the information cannot be disclosed

“without the consent of a relevant official (which may be general or specific)”.

The intent that there can be a general permission for the disclosure and use of private information infuses a lot of the Bill. That is dangerous. We will return to similar issues, especially consent, when we discuss the next group of amendments. Although I will not withdraw the arguments that lie behind it, I beg to ask leave to withdraw the amendment.

Clause 20

Damian Green (Conservative, Ashford)

I beg to move amendment 10, in clause 20, page 14, leave out lines 19 and 20.

Anne Begg (Labour, Aberdeen South)

With this we may discuss the following: amendment 11, in clause 20, page 14, line 25, leave out

‘consent (which may be general or specific)’

and insert ‘specific consent’.

Amendment 12, in clause 20, page 14, line 29, after ‘relates’, insert ‘exclusively’.

Damian Green (Conservative, Ashford)

This is a new set of amendments in that they were not debated in another place. This is very much a continuation of our previous debate in the sense that we are seeking to achieve much tighter controls over the use and disclosure of customs information. This is one of the most serious weaknesses in this part of the Bill. We have all agreed that we are in favour of the principles behind it, but the problems with the clause illustrate both the practical and principled difficulties of moving in such a direction. There are a number of key questions that the Bill, as it stands, fails to address satisfactorily for us to avoid any abuse of the important personal data that will be shared between people.

The Minister knows the sorts of questions that are likely to be asked. Who will hold the data, for a start? Will they be held entirely inside UKBA or HMRC, or will they be held by private contractors if the data management is given to them? Will important personal data be held outside this country, as we have seen in some cases? There is no reason in principle why that should be any more or less secure than data held in the country, but is he aware from previous problems that when data that have been stored outside this country go missing, people feel even less secure than they do when they discover that they have been lost here?

Another important set of issues relates to proportionality. Are the data collected worth collecting in terms of the rewards that will come from the successful use of them? There can always be arguments along the lines of, “Well, if it helps to stop one serious criminal and solve one case, then it is worth while,” but we need to have a debate at a slightly higher level than that, and suggest that we introduce some kind of test of proportionality about the widespread collection and retention of important personal data.

The other issue that I hope the Minister will address is cross-referencing. In many ways, that is at the heart of the group of amendments and of the wider issue, about which my party and I feel very strongly. Across Government—more specifically, across the Home Office—many databases are being set up, each of which contains people’s most private and personal information. They are gradually being linked with each other. If the Minister has his way, the heart of the scheme will eventually be the national identity register. But even without that, there will be nothing left that cannot be collected by the Government and switched from database to database, searched by other parts of the Home Office and Government. He will recognise the genuine and increasing public alarm at that. Although each individual database may be justifiable in some sense, it is the aggregation of all the information that rightly causes people to be increasingly concerned.

We want our amendments, particularly amendment 11, to be accepted so that they challenge that whole process and start reversing it. For example, amendment 11 would remove the phrase

“consent (which may be general or specific)”

and insert “specific consent”, which would exert much more control over what can happen to the data. Amendment 12 talks about “exclusively” relating to the information. Again, that would narrow the field where activity may happen. We also suggest leaving out subsection (2)(b), so removing the Secretary of State from the clause. We are seeking to ensure that any onward disclosure of personal information is approved by the individuals concerned.

I dare say that the Minister will argue that that kind of principle cannot be applied to criminals, as we need to be able to chase them. My response—which goes to the heart not only of this argument, but a lot of other arguments—is that the problem is that everyone in the country is now a suspect. Every individual is now being treated as though they are a potential criminal, and the gains for fighting crime that we might get from that approach are outweighed in the long run by the losses of turning every citizen in the country into a potential suspect, and treating them as such through the collection, dissemination and cross-referencing of information by the Government.

All of that would be true, and I would argue it just as strongly, even if I believed that the databases were 100 per cent. accurate and secure. However, the arguments that I advance are much stronger given the situation we are in, as we know that any large database inevitably contains a huge number of errors. Furthermore, as has been dramatically illustrated many times to the general public, none of those databases is particularly secure.

The Government, and some private operators, have an appalling track record when it comes to storing and securing personal data. Every breach of data security not only endangers the privacy of the individuals concerned, but inevitably costs the taxpayer thousands of pounds in investigations, internal reviews and potential litigation. If someone were to look at the matter dispassionately, they would ask whether the British state is the sort of body that should be allowed to collect and disseminate large amounts of private information. If the state were a private company that had to obtain a licence to do that sort of thing, it would have lost its licence by now as it is simply not fit to do it.

Last November, the Prime Minister said, in what I thought was a moment of blinding candour:

“We can’t promise that every single item of information will always be safe.”

He is right—practicality tells us that—but he does not go on to think about whether we should be collecting all that information and whether, through this part of the Bill, we should be allowing ourselves to collect information and supply it around the Government.

This is not a general complaint, it is specific to HMRC and some of the people who now work in UKBA and whose powers we are extending. November before last, the Chancellor of the Exchequer had to reveal that HMRC had lost two discs containing the names, addresses, bank accounts and national insurance numbers of 25 million people. That was probably the most dramatic and damaging of all the data losses. Beyond that, the personal details of thousands of criminals have been lost—the names, addresses, details of conviction and even the jail release dates of 130,000 criminals were lost when a computer memory stick went missing. It was being used by an employee of PA Consulting, the firm at the heart of the identity card plans.

The Department for Transport has already featured in our debate, and the Driver and Vehicle Licensing Agency lost the details of 3 million learner drivers after a computer hard disk went missing. Perhaps worst of all, last year we discovered that the Crown Prosecution Service had lost a disk containing more than 2,000 DNA profiles received from crime scenes in the Netherlands for over a year.

Even when fighting crime, and introducing the sort of measures that the Minister will argue that the legislation is about, we cannot have much confidence in the Government’s ability to use efficiently the vast amount of private information that is being obtained to fight crime. There are many other examples with which I will not weary the Committee.

I hope that the Minister recognises the principle behind our argument. We should not simply be allowing ever-increasing amounts of data to be collected and ever-wider numbers of individuals or institutions within Government to pass that information between each other, without proper checks and without, at the very least, specific knowledge of why they are doing it, who is allowed to do it and who is allowed to give consent for it to be done. A couple of our amendments have concentrated specifically on that last point. General permissions should not be given such that whole classes of people can start exchanging the private information of British citizens. If there is a specific reason to do it, that is arguable, but specific, not general, consent has to be necessary.

As I observed in one of our debates this morning, it is easy for people to make general points about how Parliament should act in better ways to uphold the privacy of individuals in this country. It means, in practical terms, that we must get to the heart of the legislation to see whether another piece of the protective undergrowth is being cleared by small, apparently innocuous, parts of the Bill, which do not appear to be very much to do with personal privacy, and stop that happening. We are seeking to do that with our three amendments. I hope that Members on both sides of the Committee who actually care about privacy and the ability of people to keep information about them private will recognise the strength of the arguments behind the amendments.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I fully support the amendments, and their intention to introduce tighter controls on the use and disclosure of information. Miss Begg, you will not have heard this morning’s deliberations on databases and so on, and I will not bore other hon. Members who have heard them at length today and on other occasions, but clearly there is an issue about the creation of very large, centralised databases and the control, security and disclosure of data. The amendments would ensure that specific consent is sought, or that the data relate exclusively to an individual and would thus tighten up the procedures.

I shall digress briefly. This morning, many Members may have heard a story about mobile phones. At some point in the past, perhaps in response to a market research questionnaire, people may have failed to tick a box to confirm that they were not giving consent to having their mobile phone number held in a central directory. People who missed that box then found that their mobile phone number was available through that central directory. There are some similarities in flagging up the fact that consent may have been sought in relation to a specific exchange of data, rather than generalised consent that was given in the past—perhaps in circumstances slightly different from those that prevail now—and which has been forgotten about. Unless the Minister can give some strong reassurances that the amendments would serve no purpose, we may well be supporting the hon. Member for Ashford in his venture if he pushes his point harder.

Phil Woolas (Labour, Oldham East and Saddleworth)

We seem to have come to a controversial part of the Bill, or at least to a controversial argument. The problem is that the argument is not about the clause. The clause is not about databases. It is about what permission HMRC and the Revenue and Customs prosecution officers need so that they can give customs and immigration officials information and what those officials need to give information to other agencies, such as courts.

Let us remember that the purpose of consolidating the existing powers in the new agency is to fight crime. By extrapolation, a police officer may have access to the fingerprint of a criminal. If my customs and immigration officials have apprehended someone they suspect, for customs and immigration reasons, to be a criminal, they would be allowed to share information with the police. The provision is about fighting crime, not about a Big Brother database. Indeed, we have added measures to existing powers and to the Bill to protect against such things as the hon. Gentleman is reasonably worried about.

I accept the point that, with technology, there could be creeping, unintended—if you take a different view, intended—interference in people’s privacy. I respect that point of view, but let me outline what the provision is trying to do and is doing, and not what it is being accused of doing. The danger is that we tie the hands of our officials so much that they do not have access to the intelligence information that they need to do their jobs. Our constituents would not forgive us if we were to get that balance wrong.

Sections 40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality framework applied to the use and disclosure of information that is provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office. That legislation has been debated and passed by the House. Clause 20, the amendments to which we are debating, introduces two new sections for insertion after section 41 of the 2007 Act. The clause enables Revenue and Customs and the Revenue and Customs Prosecutions Office to disclose customs information, including a relevant document or article, to a designated customs official; to the Secretary of State by whom general customs functions are exercisable, or, in practice, their officers; or to the director of border revenue or—in practice—a person acting on their behalf for the purposes of the customs functions exercisable by them. The clause permits disclosure of customs information to the Secretary of State for his newly acquired customs functions and enables staff who currently work for HM Revenue and Customs, but will soon transfer to the UK Border Agency, to continue to receive relevant information for the discharge of their customs functions.

The clause also sets out the specific circumstances in which those who receive customs information supplied under the proposed new section 41A of the UK Borders Act 2007 may themselves disclose it to a third party, such as a court official. Wrongful disclosure of such information to a third party will be subject to the criminal sanction prescribed in section 42 of the 2007 Act. That critical assurance, which was sought in the debate on the 2007 Act, transfers to the Bill as well.

We believe that the agency must have the ability to use information that it receives from HMRC and the prosecutions office in order to do its job properly. There will be times when the agency needs to disclose information for the purposes of civil proceedings to ensure that it can fully carry out its customs functions at the border. That could, for example, include disclosure to the VAT and duties tribunal in the exercise of its customs revenue functions in relation to the export of goods from, or the import of goods to, the United Kingdom. That means that if the officers are aware of or believe there to be a transgression of VAT duty payment, they should be entitled to tell the tribunal. I do not see that as an infringement, but as a necessary civil law enforcement function.

Those key functions of the agency need to be protected. While such disclosures could arguably be made on occasions under proposed new section 41B(2)(a) of the UK Borders Act 2007, that would not always be the case. It is important to ensure that there is a clear and unambiguous power to make disclosures for civil proceedings, including those before the tribunal. Amendment 10 would cast doubt on the ability of UKBA to match such disclosures and would therefore have a negative impact on the ability of UKBA to do its job.

The position under amendment 11 would be similar. Revenue and Customs and UKBA will work closely together in the discharge of their respective functions. In particular, the agency will work with the Revenue and Customs prosecution officers in taking forward relevant criminal proceedings. Information sharing will be integral to that process, just as it between the police and the Crown Prosecution Service.

The ability to share information under the 2007 Act, in accordance with general consents given by HMRC or RCPO, will not lead to unrestricted data sharing but, rather, will enable a class of relevant information to be shared where that is appropriate. It would be impractical and hugely resource-intensive if, as amendment 11 requires, HMRC had to provide specific consent each and every time they supplied information to a person under section 41A of the 2007 Act. It would be paperwork. It would be form-filling. It would be tying up in unnecessary work the hands of the officials we are asking to protect our revenues and our borders. Amendment 11 is neither realistic nor desirable.

Lastly, it seems that amendment 12 is intended to clarify the fact that information may only be disclosed under proposed new section 41B(2)(f) of the 2007 Act when the person wishing to disclose it has the consent of the person to whom it exclusively relates. I want to assure the Committee that this is precisely the effect of the current drafting and reflects the existing practice of HMRC, RCPO, the Home Office and the agency, so the amendment is unnecessary. Although it is arguable that disclosure of information for civil proceedings would sometimes be possible under the new sections of the 2007 Act, that would not always be the case. Further, the inclusion of an express power to disclose for the purposes of criminal proceedings could cast doubt on the ability to disclose for the purposes of civil proceedings in the absence of an equivalent express power to do that.

The power to disclose HMRC information for the purposes of civil proceedings, whether in the UK or not, mirrors provisions in section 18 of the Commissioners for Revenue and Customs Act 2005, which enables HMRC to do their job. In short, the amendments arise from concerns about the integrity of databases and the purposes to which they are put. The clause is about the very pragmatic instances when our officials share information in order to apprehend crime or potential crime, whether civil in the case of duties, or crime in some of the customs functions. It is also about the ability of the agency’s officers to share that information with the justice system. In that respect, I believe that the amendments are a red herring, important principles though they raise.

Damian Green (Conservative, Ashford)

The Minister slightly gave it away in his last remarks when he talked about apprehending crime or potential crime. That is another of the catch-all phrases that Ministers have taken to using to justify ever-increasing intrusion. The potential to apprehend potential crime and to give the state the power to do that requires very severe restrictions, checks and transparency of the type that is not available. Every transaction is a potential crime according to that mindset. Ministers always come down on the side of, “If it might prevent a single crime in the future, then let’s do it. Let’s take these powers. Let’s exchange this information. Let’s give more people the power to access this information.” In a sense, I suspect that there is no point our debating the matter. We just disagree. I think it is a dangerous way for the Government to operate.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is painting a picture. We are talking not about customs and immigration officials being judge and jury, but about law enforcement. Just as a police officer needs access to intelligence about fingerprinting, say, to investigate a crime, if a customs official is faced with a bloke with a bag full of cocaine it might be useful to know from Revenue and Customs whether he owes money on a big tax bill. That is not being judge and jury; it is law enforcement investigation.

Damian Green (Conservative, Ashford)

But if he is in front of the officer with a bag full of cocaine, he will be arrested anyway, so that is not a particularly powerful example.

The Minister’s basic point is that this is just about law enforcement, not databases. However, in practice, these days, any collection of personal information and data is about databases, because all the information collected under the clause will end up on a database. That is what the databases are for and that is why the data are collected. I am afraid that that is relevant. All the points that were made about the security of those databases and the ability of people to cross-reference databases are relevant to a clause such as this one in a Bill of the type that we are discussing.

The Minister said that he was worried about me—although he did not use the word “paranoid”, I think he thought that—being concerned about things being slipped through. I am fascinated by proposed new section 41B(1) and (2)(b), under which,

“A person to whom information is supplied under section 41A may not disclose that information...But subsection (1) does not apply to a disclosure...which is made for the purposes of civil proceedings (whether or not within the United Kingdom)”.

That is a powerful exemption that applies to any civil proceedings anywhere in the world, and that means that the protection that is written in does not apply. The Minister has yet to convince me that, without protection, that sort of exemption to the protection does not drive a coach and horses through his arguments about the provision being proportionate or, in some ways, necessary for crime fighting. By definition, civil proceedings do not involve criminal offences; otherwise, they would be criminal proceedings, which are covered in another part of the same clause. That is why we tabled amendment 10.

It is significant that much of the Minister’s response was about how the provision makes life easier for the institutions concerned to do what they do. I am sure that that is true. But overriding that should be the convenience of the citizens of this country, the vast majority of whom are not criminally inclined, are not going to smuggle stuff across the border and will not break immigration rules. The Minister and I disagree on a point of principle relating to where the appropriate balance is struck between personal freedom and personal privacy in this country and the ability of the organs of the state, including the law enforcement agencies, to do their job with what they would regard as the minimum fuss.

I am sure the Minister will be pleased to hear that I accept his point about amendment 12. If he assures me that what is in the Bill is not altered and strengthened in any way by the addition of “exclusively”, I am happy to accept that argument. Nevertheless, I do not accept his arguments on amendments 10 and 11, which I propose to put to a vote.

Paul Rowen (Liberal Democrat, Rochdale)

I have been listening carefully to the debate and I understand what the Minister is trying to achieve. However, as the hon. Member for Ashford said, the clause grants the ability to disclose information in respect of any civil proceedings. Were the Minister to define that, perhaps in a separate statutory instrument, and to say under what circumstances and for what purposes such information would be made available, he could reassure Committee members. That might be a compromise way forward that might reassure those of us with severe concerns about the overarching nature of the disclosure that the clause seeks to grant customs officials.

Phil Woolas (Labour, Oldham East and Saddleworth)

I think I understand the hon. Gentleman’s point. There is not an overarching power; the Bill transfers what is currently the provision. A real case that came across my desk a few weeks ago provides a typical example of where information may be passed over. Cash had been found in someone’s suitcase at Luton airport and information was disclosed to a customs official that the person was wanted for alleged criminal activity and alleged tax avoidance. One must strike a balance. I cannot comment on the individual case too much.

If a legitimate activity is being undertaken—such as travel with an amount of cash—but there is reasonable suspicion that a person’s intent is either criminal, or civil if it relates to VAT and duties, it seems perfectly reasonable that the official should have the power to share information. That is not the same as the picture painted by the hon. Member for Ashford. He has had the good grace to say that it is a question of balance and I accept that. The next time someone from a tabloid newspaper phones up and says, “Why did the officials at UKBA let that person go?” I hope he will have the honesty to say that it was because he disagreed with the balance. That is the reality of the work that my officials do.

I do not accept the argument that there is a new power, new database or a new infringement or interference in anybody’s privacy. These are transfers of powers. I throw his argument back at him. If we were talking about a border police force, would he not want that police force to have these sorts of powers? Of course he would; otherwise, it would not be a police force. The House is right to scrutinise and investigate but we should get the balance right and give our officials the powers that they have already, and that they need under the new structures, to do their job to protect us.

Clause 22

Damian Green (Conservative, Ashford)

I beg to move amendment 13, in clause 22, page 17, line 25, at end add—

‘(10) In the application of PACE orders by virtue of this section—

(a) no person may be detained in an office of the UK Border Agency which has not been designated as a police cell for a period exceeding three hours;

(b) no person may be detained in a police cell under powers granted to the UK Border Agency for more than five days.’.

The purpose of the amendment is to enable us to have a serious discussion about the application of the rules under the Police and Criminal Evidence Act 1984 because they are to be extended. In the last knockings of our previous debate, the Minister said indirectly that a lot of what is happening in this part of the Bill involves extending police powers to non-police officers, so we must carefully consider the extension of the protection from police action that we provide under PACE. We seek in the amendment to make specific suggestions, and to open up that area of debate. The Minister and I agree that the protection and powers that are given to the police under PACE must be carefully considered if they are to be extended to officers who have their own competences but are not police officers.

We suggest that no one should be detained in an office of the UK Border Agency that has not been designated as a police cell for a period exceeding three hours, and that no person may be detained in a police cell under powers granted to UKBA for more than five days. There is a degree of consensus about the need for a code of practice and strict guidelines about what happens to those who are kept in short-term detention under the terms of the Bill. When somewhere is designated a police cell, different rules apply, and it is worth discussing the wider point and whether the application of PACE powers to all customs officers is necessary and desirable. I hope that the Minister will address that large number of issues when he responds.

As the Minister and the Committee know, PACE and the accompanying codes of practice provide the core framework for police powers and safeguards in all police activities that are being adopted by UKBA officers—stop-and-search, arrest, detention, investigation, identification and interviewing detainees. The eight codes of practice cover the range of powers and are directly relevant to the powers given by this clause, ranging from the initial arrest or stop, the search of premises, the requirement for detention and treatment, and recordings. It is not new for PACE powers and restrictions to be given to immigration officers; that has been happening since the Immigration and Asylum Act 1999. The Minister will be aware that there has been great and legitimate debate about the extent to which those powers have been exercised and he will know that interested parties, such as the Immigration Law Practitioners Association, the immigration lawyers lobby group, argue that the powers under PACE have been underused. It argues, and I am not sure that I would go all the way with it on this, that the powers should be supported by a duty to use them. That is worth discussing, but I am not suggesting it with this amendment.

It has been suggested that the Minister’s undertaking to make orders under the 1999 Act did not go far enough. Other bodies, such as the Equality and Human Rights Commission, have said that there are potential human rights implications by leaving that in the Secretary of State’s discretion. The Joint Committee on Human Rights has also welcomed the application of the PACE safeguards to investigations conducted and persons detained by immigration officers and customs officials, although the Committee said that they thought that the Government’s intentions were still more limited than they would have liked.

There is a lot of outside unease and suggestions have been made about how to balance the enforcement capacity, which needs to be effective, and the protection of those being detained. The Minister will be aware that the Government proposed amendments to clause 22 in the other place. Those would have applied PACE and the equivalent order for Northern Ireland to designated customs officials who exercise equivalent functions as HMRC officials. The Government’s amendment allowed certain safeguards contained in the orders to apply to criminal investigations conducted by immigration officers and customs officials in relation to a general customs or customs revenue matter and to the persons detained by such immigration and customs officials. To an extent, so far so good, and that was welcomed in the other place. The problem is that the effect of those Government amendments to clause 22 has been diluted by including the ability to amend or repeal the clause by order under clause 23, which gives a broad power to disapply the safeguards contained in the HM Revenue and Customs order.

Liberty, among other organisations, suggests that the improvements and more have been washed away by that wide-ranging power. The safeguards provided by PACE therefore are now not adequately reflected in the Bill. Liberty says that they would not be aware if the Secretary of State had applied the safeguards in PACE to immigration officials. It argues, and I would like to hear the Minister’s response to this:

“Giving the Secretary of State only the power to apply PACE provisions is unsatisfactory where the extension of intrusive powers is proposed. If this reform goes ahead, at the very least, a requirement for PACE protections must be fully incorporated into primary legislation.”

It is a debate worth having now, although we can consider it at other stages. Liberty has given evidence to the Home Affairs Committee expressing its concerns about extending traditional policing powers to non-policing bodies. I am pleased that even Liberty says that

“sometimes that may be necessary in a certain context”,

because it is necessary in a certain context. Those of us who have argued for greater coherence in our border enforcement agencies have to accept that point. However, if we extend powers that were once available only to the police, the safeguards that we impose on the police need to be imposed on other people—the Minister is looking perplexed—not just at the discretion of the Secretary of State, but permanently. It is not about the current Secretary of State; essentially, the argument is about whether to trust any Secretary of State to be the guarantor of the protections that one would want.

I draw the Minister’s attention to another point made by ILPA about aspects of short-term detention covered by clause 22 and the need for a clear code of practice. ILPA argues that turning police cells that are used occasionally to detain people under immigration powers into short-term holding facilities for the purposes of the immigration Acts could have “bizarre and unwanted consequences”. The short-term holding facilities are meant to have visiting committees—independent monitoring boards—and specific rules that apply in all such facilities, regulating such things as management and the welfare of detainees. ILPA points out that custody sergeants will not welcome their cells being bound by such rules. If the rules do not apply to those held in such facilities, to whom do they apply?

Like me, the Minister will have read the Lords debates carefully and will be aware that his equivalent, Lord West, said that either he was confused or the position was confusing. The noble Minister was right in his analysis: the position is confusing. He wrote a letter, but it did not appear until after the Lords Report stage, so this is the first chance that either House has had to debate the issue properly. I am conscious that the Government want the flexibility to hold people in short-term holding facilities, particularly under customs powers. However, as it stands, the legislation has wider consequences than have been considered, certainly wider than those considered in another place. There is a large fog of confusion that I hope the Minister can dispel.

To avoid the possibility of adding to the confusion, let me be clear: we do not object to the extension of PACE to officers, but we are concerned that the officers should be in the position of the police, which, effectively, they are. We know that PACE already applies to immigration officers because they have the power of arrest. Therefore, as we are extending the power of arrest to others, PACE should apply as well. That safeguard ensures that people are dealt with properly and protected by codes of conduct and practice. It is about balance. It is a Pandora’s box: the lid has been lifted and some fairly unusual and potentially unpleasant things are flying out. Yet again, I seek ministerial reassurance on all of that.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I welcome the opportunity to debate an area of the Bill that we have not touched on so far. Amendment 13 refers to the application of PACE orders in relation to UKBA activities and also the period of detention. On the latter point, as the hon. Member for Ashford has set out on behalf of the Conservatives, there clearly was a great degree of confusion around the period of detention. As he stated, the matter was not resolved until after the passage through the House of Lords and the letter that was provided by Lord West of Spithead, which I imagine Members have seen. It underlines exactly how complex the situation is in relation to detention, and one must have concerns about the ability of those who will be required to manage the system to ensure that matters are followed appropriately. The flow chart that was provided at the end of the letter is of some assistance in working out what applies where. Other Members may have seen it; the split between PACE and not-PACE activities is identified. I suspect that the complexity remains.

As the hon. Member for Ashford said, the application of PACE is entirely appropriate in the circumstances in which immigration officers will be working. I am sure that other members have received ILPA’s briefing. Back in 1999 Lord Williams of Mostyn promised us that PACE codes of practice would be adapted and introduced to cover immigration officers in the exercise of their police-like powers. However, I think it is true to say that we still await that. This is clearly an opportunity to debate it and perhaps secure from the Minister some promises about the circumstances in which PACE will apply and what further extensions he may be considering.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am very grateful for an interesting debate sparked off by reference to Lord Williams of Mostyn. I congratulate the hon. Gentleman on that point. Let me give him the reassurances that he seeks and answer the questions that have been raised in the debate.

Let me set out the Government’s intent regarding clauses 22 and 23. We have to look at those together. Should the House give Royal Assent to the Bill, clause 22 ensures that PACE protections transfer immediately to UKBA and specifically those customs officers within it. Clause 23 allows the creation in future of a comprehensive framework for UKBA, including immigration. Clause 22 currently creates the framework only for designated customs officials transferring to UKBA. In other words, that is a power that is already there for customs officials upon formal transfer to the agency. If the House accepts it, clause 22 provides that cover for designated customs officials. Clause 23 sets up the longer-term framework. We have to see the two in that regard.

Let me outline the purpose of the clause and the difficulties we have with the amendment, and then briefly answer the specific questions. As has been said, we are talking about the Police and Criminal Evidence Act 1984, and for Northern Ireland the Police and Criminal Evidence (Northern Ireland) Order 1989—which I will call PACE (Northern Ireland)—and the associated codes of practice that come with them. Many of those provisions in PACE and PACE (Northern Ireland) are already relevant to the exercise of criminal investigation functions by officers of Her Majesty’s Revenue and Customs. Those provisions are applied, in appropriately modified form, to any criminal investigation and to any person detained by an officer of HMRC. That is achieved by means of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007—in other words, the House has already looked at that point for the situation inside HMRC—and the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order (Northern Ireland) 2007. For the purposes of the debate, I shall call these orders “the Revenue and Customs PACE orders”.

The provisions applied to HMRC officers include powers used for the investigation of revenue and customs offences at the frontier and elsewhere, and for the designation of custody suites and custody officers. They also impose relevant obligations on officers to safeguard anybody that they detain, as one would expect. Of course, we need to ensure that, as the designated customs officials of the border force will in future be investigating and detaining people for the same offences and exercising the same functions at the border as officers currently do for HMRC, they have the same powers and are required to provide the same safeguards to those that they detain.

Therefore, it is our intention that the substantive provisions of the Revenue and Customs PACE orders should apply in future to criminal investigations of customs matters conducted, and persons detained, by the designated customs officials of the UK Border Agency. However, clause 22 does not apply all the provisions in the Revenue and Customs PACE orders. Some of them, such as the powers relating to production orders in tax investigations, will not be required by UKBA, so it would not be appropriate to apply them.

In summary, clause 22 effectively applies the vast majority of the provisions of the Revenue and Customs PACE orders to criminal investigations and to persons detained by designated customs officials of UKBA, who will in future exercise enforcement functions in situations of the type where those functions are currently exercised by HMRC.

We intend that there will be a seamless application of PACE to the designated officials, particularly those who are transferring over, until a further bespoke PACE application order is made directly in relation to UKBA’s customs and immigration functions, under clause 23 of the Bill.

Regarding the amendments that have been tabled, I again want to congratulate the hon. Member for Ashford on his powers of scrutiny. The situation is that UKBA has, of course, a dual function, to tackle criminality and to regulate immigration. It uses criminal powers to arrest and administrative powers to detain. Limiting to three hours the period for which a person may be detained following arrest would prevent the agency from dealing with straightforward cases in the most effective manner, which would add costs for transporting prisoners and create an additional burden on local police stations in a way that I suggest Members of Parliament would not wish to see. It would also create an unjustifiable inconsistency with other law enforcement bodies, such as Revenue and Customs or the police, in respect of persons detained following arrest in identical circumstances under the provisions of PACE but applied elsewhere.

Where a person has been arrested in relation to a criminal offence by an officer of UKBA and is being detained in a police station, that detention is regulated by the time scales provided in PACE and by the relevant codes of practice, to pick up on the point that was made earlier. The same procedure is followed by officers of HMRC and the police.

The amendment seeks to limit to five days the period for which a person may be detained by the agency under administrative arrangements in a police cell but not under criminal powers. Under the powers of the Immigration Act 1971, a person may be detained by a UKBA officer pending further examination, removal or deportation. The places where a person may be detained under these powers of detention are set out in the Immigration (Places of Detention) Direction 2009, made under section 18 of the 1971 Act, which include police stations. That direction already limits to five days the period for which a person may be detained in a police station under the border agency’s administrative powers. That period may only be extended for a further two days if the person concerned is to be removed from the United Kingdom within that two-day period. The amendments proposed are, therefore, disproportionate. Paragraph (a) creates inconsistency with the existing PACE framework and, as a result, limits operational effectiveness without good cause. Paragraph (b) imposes a time scale for administrative detention that already exists in secondary legislation. Again, what we are doing here is transferring over what already exists. There may be arguments about that, but to change them within this clause would create inconsistencies across the agencies and would, therefore, be undesirable.

Damian Green (Conservative, Ashford)

I thank the Minister for that very full and startlingly clear exposition of the PACE rules as they apply in these particular circumstances. I take his point about the inconsistency. What I was seeking to do—and I think that I was successful—was to provoke a full and proper discussion of the importance of the appropriate application of the PACE rules to new types of officers who now have quasi-police powers. We have seen what has happened with those powers, and seen the PACE safeguards being applied to immigration officers since the Immigration and Asylum Act 1999. Clearly, with greater numbers of officers having such powers in the future, it will be increasingly important that the protections are applied properly. I hope that the Minister accepts that questions remain over the appropriateness of allowing the Secretary of State to be the person who has the power to decide on whether or not to apply the safeguards. It may be that that is another imbalance in the system. With that significant caveat, I beg to ask leave to withdraw the amendment.

Clause 23

Damian Green (Conservative, Ashford)

I beg to move amendment 14, in clause 23, page 18, line 6, leave out subsection (5) and add—

‘(5) A designated immigration officer or a designated customs official at a port in England, Wales or Northern Ireland may detain an individual if the immigration officer thinks that the individual—

(a) may be liable to arrest by a constable under section 24(1), (2), or (3) of the Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or (3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I., 1989/1341 (N.I. 12)), or

(b) is subject to a warrant for arrest.

(6) A designated immigration officer who detains an individual—

(a) must arrange for a constable to attend as soon as is reasonably practicable;

(b) may search the individual for, and retain, anything that might be used to assist escape or to cause physical injury to the individual or another person;

(c) must retain anything found on a search which the immigration officer thinks may be evidence of the commission of an offence; and

(d) must, when the constable arrives, deliver to the constable the individual and anything retained on a search.

(7) A designated immigration officer may use reasonable force for the purpose of exercising a power under this section.

(8) Where an individual whom a designated immigration officer has detained or attempted to detain under this section leaves the port, a designated immigration officer may—

(a) pursue the individual, and

(b) return the individual to the port.

(9) Detention under this section shall be treated as detention under the Immigration Act 1971 (c. 77) for the purposes of Part 8 of the Immigration and Asylum Act 1999 (c. 33).’.

I am tremendously confident of a positive response from the Minister on this amendment because it comes word from word from his draft Bill, so I am not seeking to make the Government do anything that they did not want to do themselves last summer. No doubt had they had the legislative time, we would have been debating this with the Minister proposing it rather than me. Being always fair-minded in my opposition, I am sure that I would not have been proposing any amendments to it. The amendment fits very well with the existing Bill. Clearly, there were large parts of the draft Bill that are in other parts of the immigration field and would sit very strangely in this Bill. I believe that this amendment rounds off the existing clause rather effectively. It inserts a number of new sections, which describe why a designated immigration officer may detain an individual. It also sets out the rules about how the designated immigration officer should arrange for a constable to attend, carry out searches, retain any material taken and deliver to the constable what has been taken from the individual. It would allow reasonable force and allow the immigration officer to pursue the individual, and return the individual to the port.

Given that thousands more people will have those potential powers, it is important that we set out the rules regarding detention at port. Indeed, I am slightly surprised that that segment of the draft Bill did not survive, because it seems to fit very well with this part of the Bill and it fits seamlessly into clause 23, which is about immigration and detention. The amendment makes specific the debate that we have just had about the application of the PACE rules and safeguards. In themselves, they are very important, but it would make them more real and bring home as a practicality what we mean when we talk about a rigorous code of practice and conduct for officers at the border.

Even if we accept—we never have done—the Minister saying that amendment 13 would introduce some inconsistencies into the application of the PACE rules, amendment 14 certainly would not. It sets out the sort of powers and protections that are available already in such legislation, so it genuinely would provide great confidence to those who have doubts about the appropriateness and powers of the protection that is available. These are specific. They would be in the Bill. People would know where they stood. They would know, first, the powers of the immigration officer, and secondly, the limits and constraints on those powers; both are perfectly admirable intentions of any such piece of legislation. As I said, I do not need to persuade the Minister. These would have been his words in other circumstances, so I hope that he can persuade himself that it is a good amendment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am anticipating with joy and glee how the Minister will extricate himself from the amendment and explain it away, given that his Government proposed it. I believe that it sets out a useful blow-by-blow account of the steps that must be taken of a designated immigration officer who detains an individual. It is useful that such action is documented. The proposal seems sensible and it has a good pedigree, so I await the hon. Gentleman’s reply with interest.

Phil Woolas (Labour, Oldham East and Saddleworth)

Despite the encouragement of my hon. Friend the Whip, I was hoping that the hon. Gentleman would speak for a few seconds longer, so that a specific answer could appear.

The hon. Gentleman is right. It is also pertinent that the 2007 Act already does what is proposed. Let me explain again what we are trying to do. It is to be taken in conjunction with clause 22, which we have just discussed. Clause 23 provides that the Secretary of State may, by order, apply any provision of PACE 1984 and PACE (Northern Ireland), which relates to the investigation of offences or the detention of persons by police officers to criminal investigations conducted or persons detained as part of an investigation by designated customs officials or immigration officers.

Clause 22, which we have just discussed, applies provision in the Revenue and Customs PACE Orders to criminal investigations conducted by designated customs officials relating to a general customs or customs revenue matter—the first being subject to the Secretary of State’s designation, the second being subject to the director of border revenue’s designation. That point answers the hon. Member for Ashford. The clause will also apply provision in the Revenue and Customs PACE Orders to persons detained by those officials in such criminal investigations.

That will enable the immediate application of the majority of the provisions of the Revenue and Customs PACE Orders to designated customs officials, including those officers of HM Revenue and Customs who have transferred to the UK Border Agency and who are, under the proceeds that we discussed earlier, so designated. That in turn will allow UKBA’s designated customs officials to exercise the same powers in relation to customs matters at the border as those currently available to officers of HMRC. Equally importantly, that will ensure that when in future the agency’s designated customs officials exercise those powers, they will be subject to the same safeguards as now and in the future, when they are exercised by officers of HMRC.

In due course, however, an order under clause 23 will be made to apply the provisions of PACE or PACE Northern Ireland, as the case may be, and the associated codes of practice—that is an important point to meet the worries of the hon. Member for Ashford—more directly to designated customs officials, rather than relying on the “glossing” of the HMRC PACE Orders, for which clause 22 provides. Accordingly, clause 23(5) will enable an order made under the clause to amend or repeal clause 22.

In addition, in any order made under clause 23, we propose to address the position of immigration officers. Immigration officers do not at present use powers in PACE when conducting investigations, but they are required, when exercising powers in the context of a criminal investigation, to have regard to the relevant provision in a PACE code of practice. We have put that restriction on immigration officials. We will therefore use the order that we propose to make under clause 23 to specify those provisions of PACE—or, as the case may be, PACE (Northern Ireland)—and the associated codes of practice that will apply to any criminal investigation conducted by immigration officers, and to persons detained by those officers in connection with any such investigation. This order will replace section 145 of the Immigration and Asylum Act 1999 and replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction 2000 made under that section.

Clause 23 will confer all the powers and impose all the safeguards necessary to ensure the proper conduct by the UK Border Agency of its criminal investigations—whether in relation to customs or immigration offences. It will also provide a proper framework for the detention of persons where necessary in connection with those investigations. That is what we are attempting to do regarding clause 23.

The hon. Member for Ashford has put forward his amendments in good faith and with good spirit—I readily concede that. The answer is that that clause, of course, was not the only one that was published in the draft Immigration and Citizenship Bill in July. It is an existing clause, which is a section of the UK Borders Act 2007 in relation to immigration orders, which is now covered by the point I have just made in relation to clause 23. In other words, I agree what the hon. Gentleman is trying to achieve, but my mechanism of getting there is already covered.

Damian Green (Conservative, Ashford)

I am impressed by the ingenuity of the Minister’s response. He almost tempts me to quarry the draft Bill for further things. The temptation is almost irresistible, but I promise the Committee that I shall resist. I accept his explanation and I hope that he is right. The underlying and extremely important issue is that people should have clear rules and know what they are, and that those rules should be completely clear about what immigration officers can do in terms of detention and enforcement. Everyone associated ought to know that. I accept the Minister’s assurance that he is achieving that by other means, so I beg to ask leave to withdraw the amendment.

Clause 25

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise to confirm whether several issues to do with the clause on short-term facilities have been addressed. When the matter was discussed in the other place, there were concerns that the facilities could be used to hold people for in excess of seven days. I believe that the flow chart provided by Lord West of Spithead confirms that holding people in one of the short-term holding facilities for more than seven days is not possible. I hope that the Minister will confirm that to be the case.

Another concern was that the facilities were not designed to hold a mix of people—various people, and under varying powers. How will the Minister respond to that concern? Has it been addressed? There was also concern that it was not clear what rules or guidance would apply in respect of the treatment and welfare of people held in such places, particularly if they were being held for differing reasons. I hope that the Minister can give some clarification on those concerns, which spilled over from the debate in the House of Lords.

Damian Green (Conservative, Ashford)

I want to pick up one point made by the hon. Member for Carshalton and Wallington about the use of holding facilities. Can the Minister clarify at how many different ports and airports such facilities as could reasonably hold someone for up to seven days are available? I ask because I recently visited Dover, where there is a brand new suite of interviewing facilities. I am sure that the Minister has visited it as well—he probably opened it. That suite is state of the art, but even Dover—unless elsewhere in the port—did not appear to have the facilities to hold people for a long period. From my visits, I am conscious that one possibly could at Heathrow.

That would be useful to know, in particular in an era when we can expect that increasing numbers of those seeking to enter the country illegally, possibly serious criminals or even terrorists, will seek out routes into this country that are not the obvious ones—not the big ports and airports. Possibly, we shall need to have decent holding facilities—both secure and decent for people to be held in—at more places than just the big, obvious airports or ports.

It would be helpful to the Committee to know what state we are in at the moment. Is it just Heathrow—possibly not even Dover—where that can be done? Or are such facilities more widespread?

Phil Woolas (Labour, Oldham East and Saddleworth)

The answer is that they are more widespread—there are approximately 30 short-term holding facilities in various ports and airports. They are used for the functions that the hon. Member for Ashford rightly described.

I can give the assurance that the hon. Member for Carshalton and Wallington sought. To explain briefly, clause 25 is linked to the provision that we have just discussed in some detail in clauses 22 and 23, to ensure the effective application of PACE and the codes of practice to the UK Border Agency. Clause 25 provides us with some flexibility in the future to use short-term holding facilities to detain arrested persons, in addition to those currently detained in such facilities under the administrative provisions of the immigration Acts. The rules covering those people detained under the immigration Acts will remain the same.

A short-term holding facility is defined in section 147 of the Immigration and Asylum Act 1999 as

“a place used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”.

Section 147 of the 1999 Act also defines detained persons as

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

Further provision in respect of who may be detained in a short-term holding facility was made in section 2(6) of the UK Borders Act 2007. The power in that section allows a designated immigration officer to detain at port for up to three hours any person who the officer thinks is subject to a warrant for arrest, or is otherwise liable to arrest by a policeman, pending the arrival of a constable—the point that was made before. That provision under the 2007 Act means that individuals detained for up to three hours under the section 2 power may be held for that period only in a short-term holding facility.

A short-term holding facility may therefore be used only to hold persons who have been detained under those administrative powers of immigration detention available to the UK Border Agency that I have mentioned. As part of our desire to maximise the use of the agency’s detention and custody facilities, we wish to make more flexible use of the short-term holding facilities. To facilitate that, we propose in clause 25 that the definition be modified to allow such facilities to be used to hold individuals who have been detained other than under the existing administrative powers of immigration detention. Clause 25 achieves that by removing the word “solely” from the definition. A consequential provision is also made to the schedule of the Bill.

I stress that the modifications do not impact in any way on the treatment of persons held under the UK Border Agency’s administrative powers of immigration detention. The modification we are seeking does not relate to immigration. The treatment of such persons will continue to be governed by the existing arrangements and the maximum periods that have been referred to.

The changes to the definition will simply allow the UK Border Agency and HM Revenue and Customs to use short-term holding facilities to detain persons following arrest, where that is in accordance with the provision we are making in relation to the application of PACE and the codes of practice. In other words, the short-term holding facilities could in future hold a range of individuals, subject to the prescribed period of detention relevant in each case, including individuals arrested on suspicion of committing an immigration or customs offence for up to six hours or—where a short-term holding facility has been designated for the purposes of PACE as a place for detention longer than six hours—in accordance with the time limits prescribed by the so-called PACE clock. The provision could also cover individuals who are the subject of warrants for arrest, or who are otherwise liable to arrest by a police officer, who have been detained under section 2 of the UK Borders Act 2007 for a maximum of three hours, pending the arrival of a constable; and individuals who are subject to administrative immigration detention for no longer than five days, plus a further two days where it is proposed under removal directions set to remove the person concerned from the UK within that further period.

That is what we are trying to achieve. As I hope I have outlined, I can give the guarantees that the Committee is looking for.

Clause 26

Clause 28

Phil Woolas (Labour, Oldham East and Saddleworth)

I beg to move amendment 27, in clause 28, page 21, line 5, at end insert ‘, and

( ) after paragraph (g) insert—

“(ga) practice and procedure in relation to the prevention, detection and investigation of offences,

(gb) practice and procedure in relation to the conduct of criminal proceedings,

(gc) whether customs functions have been appropriately exercised by the Secretary of State and the Director of Border Revenue,”.’.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss Government amendment 28.

Phil Woolas (Labour, Oldham East and Saddleworth)

These are technical amendments to meet the stated policy intention to extend the independent, external scrutiny provided by the chief inspector to the question whether the Secretary of State and the director of border revenue are exercising their customs functions appropriately.

As drafted, subsection (4) has the unintended consequence of confining the chief inspector’s role to customs functions relating to offences and criminal proceedings. The amendments will ensure that the independent chief inspector’s powers in that respect extend to the broad range of the Secretary of State’s general customs functions and the director of border revenue’s revenue customs function, which was the original intention.

Damian Green (Conservative, Ashford)

Is it in order for me to speak to amendment 16, Miss Begg?

Anne Begg (Labour, Aberdeen South)

No. I shall call that separately.

Damian Green (Conservative, Ashford)

In that case, I shall simply say that I see the point of the Government amendments, and the logic of our amendment 16 sits very well with them. I hope that the Minister will be equally generous during the next debate.

Paul Rowen (Liberal Democrat, Rochdale)

The clause extends the functions of the chief inspector. Why does the regulatory impact assessment not contain anything about additional resources? Page 24 of the Home Affairs Committee’s fifth report states:

“We have some concern that the additional responsibilities in this Bill will impose a significant extra burden on the Chief Inspector of the UK Border Agency, which is already a new post, and one whose capacity to oversee the whole of the UK Border Agency we have previously questioned. We agree with the Immigration Law Practitioners Association that the Chief Inspector’s office may require a corresponding increase in resources to meet the additional burdens imposed by this Bill if his role is to be effective.”

Given that nothing is said in the impact statement, is it the Government’s intention to make available additional resources to carry out these powers?

Phil Woolas (Labour, Oldham East and Saddleworth)

I am grateful to the hon. Gentleman for raising that point, which, as he said, was raised by the Select Committee, the Chairman of which raised it with me personally and in correspondence.

The role of the independent chief inspector is a new one. He has just commenced his pilot inspections and has been made aware of the full planned scope of his role, as envisaged in the Bill. He published his inspection plans in April cognisant of that, and they take account of the proposed increased role. The then Home Secretary agreed the budget for 2009-10—£3 million—cognisant of that plan. I concede that the inspectorate is new, and we have given a commitment to review that budget, subject to the financial restraints. We have worked the matter through with the inspector. However, the hon. Gentleman makes a strong point.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not trying to be too consensual, but may I say that the hon. Gentleman has a valid point? I hope that I can satisfy him about the approach that I am taking. I come to the issue with some record as the Minister for Local Government. I have tried to sort out—moderately successfully, I think—that very point of over-inspection, through providing for gateways, less inspection and having the right inspectorate for the right functions. That is also the approach that I have adopted in this regard.

Clause 28 must be taken on board with clause 29. What I am doing is what the hon. Gentleman is trying to achieve, in terms of having single inspectorates for functions, and not duplicating them. But I have done so in a slightly different way, which I think is preferable—I am not seeking to score points for the potential difficulties with the drafting of his amendment.

Clause 28 will amend section 48 of the UK Borders Act 2007, which established the office of the chief inspector of the then border and immigration agency. That chief inspector provided an external review, independent of the agency and Department. Currently, the inspector’s remit applies to immigration, asylum and nationality functions only. Clause 28 will evolve that function as set up under the 2007 Act, and will allow the chief inspector to look at the full range of functions that will be exercised by UKBA under the Bill. As well as immigration, asylum and national functions, the inspector will be able to monitor the exercise of general customs functions via the Secretary of State and her officials, including the designated general customs officials and the exercise of customs revenue functions by the director of border revenue and her designated officers.

Apart from evolving section 48 of the 2007 Act, the clause also specifies that

“the chief inspector shall not monitor and report on”

functions at detention facilities, short-term holding facilities or removal centres. There is a power for the Secretary of State to direct that, but I took that function out—or rather, did not include it—because they are areas where Her Majesty’s chief inspector of prisons, Her Majesty’s inspector of constabulary, the Scottish inspector and the Northern Ireland inspector should continue to have the primary oversight to ensure that that is being conducted by inspectors with the right experience. In other words, for the detention facilities and for areas such as the short-term facilities, the removal centres and the escort function, the HMIP will have oversight. Our inspector will, of course, have rights and powers to work with those people. If the Secretary of State wished for a specific investigation—as sometimes the House calls for—by that inspectorate, that will be possible.

David Hamilton (Labour, Midlothian)

I do not wish to be unhelpful, but one of the things that concerns me is that we are talking about Her Majesty’s chief inspector of prisons and Her Majesty’s inspector of the constabulary. In Scotland, of course, they are responsible to the Scottish Parliament. How will the Minister balance that report? Will the report come down to this House, or will it go via the Scottish Parliament?

Phil Woolas (Labour, Oldham East and Saddleworth)

The inspectorate reports on the facilities of UKBA are for UKBA and therefore for this Parliament. There is the additional point I mentioned earlier that the Home Secretary has the power to direct the inspectorate of the UK Border Agency to look specifically at those facilities should he so decide.

Amendment 16 would have the effect of further extending the powers of the chief inspector of the agency to include monitoring and reporting on the holding facilities that I have listed, but it would not remove the responsibility of HM inspector of prisons for overseeing functions at the same facilities. I am not trying to score points. I accept the policy objective that there should be a single inspectorate. We believe that the inspectorate for detention facilities should include the people with the expertise, obviously allowing UKBA access to the reports and influence on them.

There is the further point, which I mentioned in the previous debate that, as we seek greater flexibility in the facilities, and as some facilities will not at all times be immigration-related, it makes sense to do this to provide reassurances. The fourth lock-in, of course, is the independent monitoring boards that are part of our structure.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for his explanation. He and I do not disagree about the dangers of over-inspection.

I am not entirely convinced by his position. I can see the logic of it—that there is expertise in HMIP, so HMIP should inspect detention facilities rather than the chief inspector of the UK Border Agency—but, in the end, detention and escort will be the flashpoints inside the agency in terms of inspection. That will be where inspection is most important.

It seems logical, if we want the agency to feel like a proper, coherent body that does the whole gamut of immigration control including, where necessary and at the extreme, detention, escort, deportation, removal—all those kinds of things—that the inspection regime does not send a different signal. Depending on where an individual is—they may be moved around the agency—they will have different inspectorates looking over their shoulder. That seems slightly unsatisfactory and, in the long term, slightly incoherent.

I accept that in the short term we would want the expertise of HMIP in the detention estate, but expertise could be built up over time inside one inspectorate. I do not wish to divide the Committee on the amendment, but I am not entirely convinced by the solution that the Minister has come up with. I am glad that he recognises that this is clearly a problem that could affect the UK Border Agency in the future. I beg to ask leave to withdraw the amendment.

Clause 29

Crispin Blunt (Conservative, Reigate)

I want to follow up the arguments that have just been made by my hon. Friend the Member for Ashford and to invite the Minister to explain to the Committee what the powers will be used for. The clause takes powers to allow Her Majesty’s inspectors of constabulary to take their responsibilities to the agency. My hon. Friend described the potential problems that could come from an agency looking in several different directions, to different sets of inspectors.

Can the Minister explain to the Committee what will happen in practice? What powers will be exercised by the inspectors of constabulary that will not be exercised by the chief inspector of the UK Border Agency or, indeed, HMIP? The clause is clear about the role of the Comptroller and Auditor General.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am grateful to the hon. Gentleman and to the hon. Member for Ashford. I acknowledge that it is a balanced argument. My judgment was that, because there was a specific function of detention within UKBA, the inspectorate that should look at that function should be the one that is familiar with detention rather than the institutional inspectorate, if I can put it that way. I will not persuade the hon. Gentleman on that point—I can tell that by his face—so I will answer the question.

As the hon. Gentleman knows, Her Majesty’s inspectorate of constabulary, the Scottish inspectors and the Northern Ireland inspectors carry out inspections of HMRC systems and procedures, including those in relation to HMRC’s custody facilities. In the future, those facilities will be shared between HMRC and UKBA. Therefore, it is essential to adjust the inspection regime to allow for the continuation of suitable arrangements for oversight. Under the clause, the same estate takes power to make regulations to confer functions on Her Majesty’s inspectorate of constabulary, the Scottish inspectors and the Northern Ireland inspectors. That will enable the inspection of all immigration and customs work carried out on our behalf by UKBA.

Those regulations will establish the framework for commissioning and carrying out the relevant inspections. For example, they will provide for a report of any inspection to be made and, subject to any exceptions required or committed by the regulations, to be published, as well as for payment to be made, of course, to the inspectors.

These measures are designed, as are the other provisions in the clause dealing with inspection, to allow the continuation of existing oversight arrangements, but those arrangements will be adapted to reflect the provisions of part 1 of the Bill. So they do not represent a significant extension of existing roles. To answer the hon. Gentleman’s specific question, the Bill also provides that inspections carried out in accordance with regulations made under the clause may not address matters that are the responsibility of the Comptroller and Auditor General under section 6 of the National Audit Act 1983 and for any inspection or part of an inspection that is carried out in Scotland to be—

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister for giving that explanation, some of which is found in the explanatory notes. However, I fear that I am not getting very much wiser about where the inspector of constabulary is going to work where the other inspectorates will not work. The Minister seems to have focused on detention facilities, where it would appear to be appropriate that Her Majesty’s inspectorate of prisons would normally be in the lead, but I am not clear as to when, in practice, the inspector of constabulary is going to be involved.

Phil Woolas (Labour, Oldham East and Saddleworth)

There are a number of functions that Her Majesty’s inspectorate of constabulary currently inspects, including customs detention facilities. The clause will enable the HMIC to carry on inspecting those functions. However, not all customs facilities are UKBA immigration and customs facilities; there are examples outside of those facilities. The explanatory notes do not go into detail on that issue, but that is the cover that we are trying to provide for ourselves.

For the record, I just want to point out that, as well as the exceptions for the Comptroller and Auditor General, there is the exception for any inspection or part of an inspection that is carried out in Scotland to be carried out jointly by HMIC and the Scottish inspectors.

Clause 30

Tom Brake (Liberal Democrat, Carshalton and Wallington)

We tabled an amendment that unfortunately was a starred amendment, so it is not subject to debate here. However, I thought that I would use this opportunity to ask the Minister to clarify precisely what is being achieved in the clause. The explanatory notes suggest that, as a result of the clause

“the IPCC may carry out investigations in relation to the exercise of specified immigration and asylum enforcement functions by contractors”—

I emphasise that word, “contractors”—

“and in relation to the exercise of customs functions by (a) designated customs officials and officials of the Secretary of State”.

Am I right therefore that it will not be possible to make a complaint to the Independent Police Complaints Commission about immigration officials, as opposed to immigration contractors? If so, I hope the Minister will explain why that is the case. Are there circumstances in which a complaint could be made to the IPCC about the activities of immigration or customs officials outside the UK?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman did indeed table an amendment that gave me notice to provide background information, which I have in front of me. I thank him for raising the point.

I will outline the background to clause 30 in relation to the IPCC. Section 41 of the Police and Justice Act 2006 gives the Secretary of State the power to make regulations conferring functions on the IPCC in relation to the exercise by immigration officers and officials of the Secretary of State of specified enforcement functions that relate to immigration or asylum. Clause 30 will enable the Secretary of State to extend further the functions of the IPCC to inspect any contractual services provided in relation to the discharge of those enforcement functions. It may also investigate the exercise of the general customs functions by designated customs officials and officials of the Secretary of State; the exercise of customs revenue functions by the director and any person exercising those functions on his behalf, and; the provision of contractual services provided in relation to the discharge of any of those customs functions.

The clause is necessary to give the IPCC oversight of all immigration and asylum-related enforcement functions and the customs functions that will now be exercised by or on behalf of the UK Border Agency. It will also have oversight of contractual services provided in relation to the discharge of those functions. The IPCC already has an oversight role in respect of the exercise of customs functions by HMRC. The clause will ensure that it plays the same role when general and revenue customs functions become exercisable by the UK Border Agency. The purpose of the clause is the extension to contractors.

On a pragmatic, day-to-day basis, the UK Border Agency works hand in glove with the police. Many of our operations are carried out with the police and many of our functions are carried out with their co-operation. That is why, notwithstanding the point made in the previous debate, we think it right to extend this power in recognition of the reality on the ground.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Can the Minister also respond to the query about whether it is possible to make a complaint to the IPCC in relation to something that happens when an agency is working abroad?

Phil Woolas (Labour, Oldham East and Saddleworth)

No, it is not. Our inspectorate covers the functions that are carried out by our people overseas, but complaints to the IPCC cannot be related to something that takes place overseas. That is outside its remit.