Borders, Citizenship and Immigration Bill [Lords]

Public Bill Committee, 16 June 2009.

Nicholas Winterton (Conservative, Macclesfield)

I welcome all members of the Committee to this sitting. It is a very pleasant day; I hope that the sun, with a few clouds—[Interruption]. Did I hear an electronic device, Minister?

Phil Woolas (Labour, Oldham East and Saddleworth)

No, Sir Nicholas.

Nicholas Winterton (Conservative, Macclesfield)

I always take the word of a Minister. There was no electronic device.

Simon Burns (Conservative, West Chelmsford)

Wrong Minister.

Nicholas Winterton (Conservative, Macclesfield)

Anyway, I welcome you all and I am sure we shall continue to make progress. Before we begin, however, I inform the Committee that Officers of the House, printers, Ministers and Members of Parliament are not infallible. There was a printing mistake on the amendment paper before the Committee at its first sitting. The resolution agreed by the Programming Sub-Committee, which I chaired, stated that the Committee should meet at 4.00 pm this afternoon, rather than 4.30 pm. Unfortunately, the motion before the Committee at its first meeting stated 4.30 pm. I am, however, very much of the view that although we have strict procedures in this place, flexibility when agreed across the Floor by the usual channels and Back-Bench Members can prevail. I understand that there is an agreement between the usual channels that they would like to return to the 4.00 pm start time this afternoon. To get things utterly correct, therefore, I invite the Minister to move a motion amending the Programme Order accordingly.

Ordered—

That the Programming Order of 9th June be amended—

Line 6, Leave out ‘4.30 pm’ and insert ‘4.00 pm’. —[Mr Woolas.]

Nicholas Winterton (Conservative, Macclesfield)

That is extremely satisfactory. We can now proceed with the Bill. We have reached clause 48, and I have selected amendment 56 in the name of the hon. Gentleman from that famous constituency of Ashford.

Clause 48

Damian Green (Conservative, Ashford)

I beg to move amendment 56, in clause 48, page 39, line 3, at end insert—

‘(4A) In this section a person is not considered of good character if they have been convicted of any offence that is triable on indictment.’.

The purpose of the amendment is to explore one of the slightly unclear notions on the face of the Bill by inserting a new subsection (4A). I wish to explore what the Minister means, and what the legislation purports to mean, by “of good character,” because that underlies one of the key points of this part of the Bill on citizenship. I think it would clearly be uncontroversial across the Committee that people who are to be granted British citizenship should be of good character, so it is worth while for us to have a debate on what constitutes being of good character.

The background illustrates why the debate is so important: over the past 12 years under the Government, the number of grants of citizenship is at an all-time high. The number has more or less quadrupled since 1997; indeed, in 2007, the last year for which figures are available, the annual increase was itself 7 per cent. and the number was 164,635. By comparison, only 37,010 people were granted citizenship in 1997.

It is not for the Committee, while debating the amendment, to discuss whether that is a good or bad thing. However, from the tone of everything the Minister has said during our Committee debates and, indeed, since he became the Minister for Borders and Immigration, I imagine that he thinks that percentage is too much and that he is trying to slow down the flow. Indeed, this part of the Bill makes the process more difficult, as evinced by many of the protests that we are getting from people who will find it so.

To some extent, we can regard this part of the Bill as the Government slightly belatedly addressing the fact that the current test and regulations may not have fulfilled all the criteria that the Minister would want—or, indeed, that many others would want. The specific purpose of our amendment is to cover anyone who has been convicted of a serious offence, to ensure that they cannot be defined as being of good character and, therefore, eligible for a grant of citizenship.

A new British passport is granted every five minutes these days—that is what those figures mean in time terms—so we need to be absolutely sure that every one of those new passports goes to someone who will play a positive role in the life of this country. I assume that the Minister agrees that anyone convicted of a serious crime would not be covered under any definition of good character, so our amendment has the wording,

“any offence that is triable on indictment”,

which covers crimes that are triable either in court and indictable, or triable only in a Crown court. It is quite deliberately set at that level so that we exclude summary offences, such as motoring offences. There is always a balance to be struck in such definitions; we are not simply trying to exclude everyone who may have committed what most people would regard as minor offences, but we do particularly want to stop violent criminals.

Violent crime is growing alarmingly fast in this country, and one of the areas of particular resentment is when people discover that a violent crime has been committed by someone who may not have leave to remain here. That has knock-on effects on public confidence not just in the criminal justice system but also in the immigration system, so any move to clarify the position in respect of the commission of a violent crime by anyone who intends to settle in this country and gain citizenship will be an important step forward. To a large extent, I imagine that the Minister would agree. I am not trying to open up any particular controversy with the amendment, I am just seeking clarification about what the Government mean.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

If I understand the hon. Gentleman’s amendment correctly, he is seeking to ensure that applications will not be considered if applicants have been convicted of,

“any offence that is triable on indictment”.

Could he clarify whether that is the same as anyone guilty of committing a criminal offence?

Damian Green (Conservative, Ashford)

Not quite, because, as I have just explained, certain minor offences are not covered by being triable on indictment. I suspect that the whole Committee would agree that they might not wish such things as parking fines, or even minor motoring offences, to be covered. We might not wish automatically to exclude people for ever from obtaining British citizenship for that kind of offence; equally, there will be no controversy about the fact that anyone who has committed a serious offence should not be considered as of good character and, therefore, should not be eligible for citizenship. “Triable on indictment” is the term of art that one can use to say, in essence, that it would catch most people who have committed criminal offences, apart from the most trivial ones. As I said, it is an exploratory amendment and I hope the Minister will agree with it.

Phil Woolas (Labour, Oldham East and Saddleworth)

I thank the hon. Member for Ashford for tabling amendment 56 and the hon. Member for Carshalton and Wallington for tabling amendment 54. It gives me the opportunity to explain—

Nicholas Winterton (Conservative, Macclesfield)

Order. May I advise the Minister that I have selected separately amendment 54, which he has just mentioned? There will be a separate debate on that amendment.

Phil Woolas (Labour, Oldham East and Saddleworth)

Thank you, Sir Nicholas. I was premature in my thanks to the hon. Member for Carshalton and Wallington. I was simply trying to recognise what I believe to be the good intent behind the amendments, which seek to explore the Government’s intentions.

If you will allow me, Sir Nicholas, I refer the Committee to page 35 of the explanatory notes, which provides the context for clause 48. With the clause, we are moving the existing law on the requirement of good character from the Immigration Act 1971 into nationality law. As I mentioned in our opening sitting, this is part of the jigsaw puzzle that is trying to prepare the way for the simplification Bill. The clause shows the beautiful symmetry of our legislation and I hope that the Committee will support it.

Amendment 56, which was proposed by the hon. Member for Ashford, addresses the understanding and definition of good character. There has been a good character requirement for naturalisation—not indefinite leave to remain—since the British Nationality Act 1981, which came into force on 1 January 1983. That requirement was subsequently added to by other registration provisions, particularly those in section 58 of the Immigration, Asylum and Nationality Act 2006. The requirement applies to adults and minors over the age of 10. We chose 10 as it is the age of criminal responsibility in England and Wales—it is not the same in overseas dependencies or Scotland, but we thought it was consistent with common sense. There is no definition of good character in the 1981 Act. Thus, there is no statutory guidance as to how the requirement should be interpreted or tested. The amendment is extremely helpful in teasing that out.

Let me explain why we prefer that approach. In considering whether the good character requirement is met, we have taken into account a range of criteria. We would not expect to naturalise a person if they did not respect or were not prepared to abide by the law, if their financial affairs were not in order, if their activities were notorious and cast serious doubt about their standing in the community, if they had practised deceit in their dealings with the Home Office, the Department for Work and Pensions or Her Majesty’s Revenue and Customs, or if they had assisted in the evasion of immigration control. All applicants over the age of 10 are subject to criminal records checks; the exceptions are applications from British nationals to register as British citizens and applications from certain stateless persons. Results from checks against the police national computer are considered, as are Interpol notices. Where applicants are identified as subject to international arrest warrants, the police are advised and extradition is considered.

The policy on criminal convictions has recently been tightened. Until 31 December 2007, the agency applied “clear periods”, as we call them—a set time after which they will be prepared to disregard a person’s conviction. These were generally shorter than the rehabilitation periods set out in the Rehabilitation of Offenders Act 1974. On 5 December 2007, however, the then Home Secretary announced a new policy which came into force on 1 January 2008. Any applications for citizenship received on or after that date are normally refused if the applicant has a conviction that has not become spent under the 1974 Act. It is that read-across that answers the question put by the hon. Member for Ashford.

We would not normally expect to grant citizenship to a person with a conviction that he has not spent under that Act. That includes people who have been to prison and those with non-custodial sentences. There is discretion to grant citizenship to an individual with a single unspent conviction resulting in a bind-over, conditional discharge or relatively small fine or compensation order where the applicant is of good character in all other respects. Typically, it is used for regulatory offences such as a speeding offence.

The amendment seeks to bar from citizenship anyone who has a conviction for an offence that can be tried on an indictment. In my view, the amendment does not consider the purpose and effects of the Rehabilitation of Offenders Act 1974, which meets the point the hon. Member for Ashford is making. The Act provides for a person’s conviction not to be held against them—for it to become spent—after a specified period, except in relation to certain sentences, including custodial convictions of more than 30 months. As worded, the amendment would catch only indictable offences and also offences that are triable either way—in a magistrates court or a Crown court—because an indictable offence can be heard, in some cases, in either. That does not, therefore, parallel the 1974 Act.

In any event, either-way offences range from unlawful wounding to shoplifting and it is likely that many people convicted of such offences will not receive custodial sentences. Even for offences triable only on indictment, it is entirely possible that a sentence of 30 months or less could be set down by the court. The amendment has the effect of proposing that we disregard the fact that the 1974 Act would currently class such a conviction as having become spent.

From what hon. Members, including the hon. Gentleman, have said, they would not wish to include those whose convictions were spent under that legislation as that would be contrary to the principles of the British justice system. The amendment would preclude many people who have spent offences from acquiring British citizenship and therefore could be described as too punitive. However, I reiterate the point that a person who has a conviction that will never become spent, meaning that they have received a sentence of 30 months or more for their crimes, is not normally regarded as satisfying the good character requirement. It was the intention of my noble Friends in the other place to ensure that people who commit serious crimes do not have an avenue to acquire British citizenship. I can reassure the Committee that that is already Government policy.

As to the associated question that arises from the amendment—should the requirements of good character be established in primary legislation, rather than be at the discretion of the Secretary of State?—we take the view that it is prudent to continue to apply the character test in its current form via the discretion rather than by establishing specific requirements in primary legislation. The reason is that it enables the Secretary of State of the day to continue to exercise discretion in exceptional cases. For example, there might be an applicant for citizenship who had not had criminal convictions but it might be that information held by the police would nevertheless mean that the Home Secretary could not be satisfied that he or she was of good character. Conversely, there might be exceptional circumstances in which the Home Secretary might want to grant citizenship to someone with an unspent conviction. Applying the good character test by way of the existing discretionary powers also gives the Home Secretary the option to overlook minor regulatory offences, such as speeding.

Damian Green (Conservative, Ashford)

To put this part of the Minister’s explanation in context, can he give us any idea—I appreciate that it will be rough—of the number of times that the Home Secretary’s discretion has been exercised in the past few years? In particular, how has it been exercised? Is it more likely that the Home Secretary will bar someone who would otherwise be disqualified, or let in someone who would otherwise not be qualified? That information would be helpful to the Committee.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is a difficult question. I agree with the hon. Gentleman’s intent on citizenship—I take what he said as a compliment. I can give him some overall statistics. In the period 2003-08, 9,732 applications were refused on good character grounds. Those are total refusals, which does not answer the specific point that he made.

The hon. Gentleman gave figures about the increase in citizenships. Some of that is as a result of our doing things more quickly and better, so the number will flatten out—one should not take the steepness of the slope as a trajectory for the future; it reflects, in part, better processing and is something that, presentationally, we suffer from. On the specific question of how many people are in the former category and how many in the latter, I will have to come back to the hon. Gentleman. It is a very interesting question. If we were to put that rigid criterion, particularly on the former category, in immigration law, it would take away that discretion. There could be a situation whereby a person the authorities had good reason to believe might not be of good character, but who did not have a conviction as described under the 1974 Act, could not be excluded on those grounds, and we would be challenged, in practice, in the courts, including, I suspect, in foreign courts. I do not have official figures on the two examples I have given, I am afraid. I will have to investigate and come back to the hon. Gentleman on that.

I certainly agree with the intent; indeed, I go a bit further. I think that the specific problem—I am not trying to score points on the indictable element—is the twin court approach; it could be a magistrates court or a jury court. Having said that, we believe it is right to define what we mean by good character, using the legislation that is about that—the 1974 Act—and apply that to immigration and allow that discretion. I hope that helps in providing the information that the amendment seeks to draw out.

Damian Green (Conservative, Ashford)

I am grateful for that explanation, which is half satisfactory. I appreciate everything the Minister said about the read-across from the 1974 Act and how it is important to maintain consistency there. That is a valid point and I can see why he might regard that as superior to the formulation we have come up with. I note en passant, however, that this may be one of the few times since the Minister took office when he has found something that we have suggested more draconian than what he is prepared to support. There is a small historic footnote to be made here.

Phil Woolas (Labour, Oldham East and Saddleworth)

It depends how you use the discretion.

Damian Green (Conservative, Ashford)

Indeed so. I was going to come on to the discretion which the Minister has just talked about from a sedentary position, because that is where I am less satisfied. The second part of the explanation he has just given was explaining the legislative basis, which anyone applying for citizenship could look at, could find out about, particularly in the wake of this debate, as a result of which they would know whether they had committed an offence that meant they were not of good character and would not be eligible for British citizenship. It seems that if we are passing laws in this place, that kind of clarity is something to which we should aspire, so that part of the speech was fine. In the first part, however, the Minister said there were a number of other considerations that—as he put it—“we take into account”. They were all fairly vague: whether there were financial offences or financial difficulties, and so on.

That led in to the Minister’s final point about the Secretary of State’s discretion, which can be applied both ways. The Committee ought to be slightly worried about that. Allowing the Home Secretary and Home Office of the day so much discretion to decide on something as important as whether people are of good character or not, makes me uneasy—particularly as Committee members are seeing no hard and fast rules and criteria that the Home Secretary is obliged to apply. One can imagine periods where Home Secretaries might be encouraged either to be unnecessarily draconian, or unnecessarily lax, for certain groups of people that might have engaged the public imagination. It might go either way, with people saying, “These people must be granted citizenship”, or “These people must not, under any circumstances, be granted citizenship.” The principle of the Home Secretary’s having that degree of discretion about issues as important as not only granting citizenship, but also the formal decision about whether somebody is of good character or not, concerns me. That sort of thing ought to be set down in legislation.

I accept the Minister’s explanation of the objective criteria that had been used since the 1981 Act, and why those may be superior to the objective criteria in our amendment. However, the less objective parts of his explanation should give the Committee some pause for thought because they allow too much discretion to the Home Secretary of the day. I will, with the Committee’s permission, withdraw the amendment, but the debate has been useful because it has given rise to that unease, and I would hope the Minister will consider that for future stages of the Bill.

Phil Woolas (Labour, Oldham East and Saddleworth)

I think the question I was unable to answer is important. The numbers will give us a better idea. I will return to that point.

Damian Green (Conservative, Ashford)

I am very grateful, and my question was asked partly to elucidate the practical effects of the uncertainty around the edges. However, whatever the numbers are, there is a principle at stake about what kind of discretion Ministers should have in that area, when it is perfectly possible to find objective criteria. There could be criteria that people either pass or fail—that could be discussed openly by the House, be passed into legislation and then be known to everyone involved in the sector—or there could be this pattern of discretion around the edge. Perhaps, as a principle in this kind of decision making, the less discretion, the better. However, I beg to ask leave to withdraw the amendment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to move amendment 54, in clause 48, page 39, leave out lines 6 to 11.

Damian Green (Conservative, Ashford)

I simply want to draw the Minister’s attention to the debate on the same amendment when it was moved in another place, because I thought that the Minister’s response in another place was completely admirable. Lord Brett said,

“I shall keep my response short, if not slow. A powerful case has been made. I have the brief. The sensible thing is for the Government to reconsider the issue, and I give that commitment”—[Official Report, House of Lords, 4 March 2009; Vol. 708, c. 751.]

When a Government Minister in another place looks at his brief and decides that it is such rubbish that he cannot even bring himself to read it out, I suggest that the Minister should pay heed. I commend the openness and honesty of Lord Brett; while he did not quite put it in the way that I have just done, that is clearly what he meant.

Indeed, as the hon. Member for Carshalton and Wallington has just said, in practical terms there is an extremely powerful case to be made, and I dare say that the Minister will want to address the issue of precedent. That is clearly the genuine issue that the Committee needs to assess—whether this would actually be a way to open the floodgates to large numbers of others of whom the Committee might not take the same view. Certainly, as now drawn, the amendment will affect a small and diminishing number of wholly admirable women and it would, on the surface, appear slightly churlish behaviour by this country to insist on their meeting these tests.

Nicholas Winterton (Conservative, Macclesfield)

The Committee awaits the Minister’s reply with very considerable interest.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Member for Ashford has my brief spot on, because the arguments in it about the specifics of the hon. Gentleman’s amendment run to several pages and the argument on the crucial point runs to two paragraphs. He has predicted my response with uncanny accuracy. My noble friend Lord Brett, who brings to the Dispatch Box years of pragmatic trade union negotiation experience, can spot a good argument when there is one, and it is his privilege to pass the buck in this regard.

However, I have looked at this and the hon. Member for Carshalton and Wallington is right; his argument is, within itself, powerful. I come to our analysis of it. The two words—or the acronym plus word—“ILPA precedent” set alarm bells ringing in the mind of any self-respecting immigration Minister. We fight, if that is the right word, a constant ongoing legal battle over precedents in immigration law. I shall put the background to this on the record, then ask the Committee to consider the way forward.

The Hong Kong (War Wives and Widows) Act 1996, which formed part of the arrangements for the handover of Hong Kong to China, came into force on 18 July 1996. It provides for the discretionary registration as British citizens of the wives, widows and divorcees of men who fought in the defence of Hong Kong during the second world war. A woman would be eligible for registration if she was a resident of Hong Kong, and a recipient of a letter from the Home Secretary confirming that she could settle in the UK on the basis of the man’s wartime service, and if she was no longer married to the man concerned, had not remarried—to avoid the transfer of rights to the new husband, or subsequent husbands.

The 1996 Act is unusual in that it applies only to a very small and finite number of people. It only ever affected, as the hon. Member for Carshalton and Wallington rightly said, a maximum of 53 women. That is the number of woman, for the record, who were actually issued with a letter. A further unique feature of this provision was that, unlike most other applications for citizenship, there was no fee for registration, such was the generosity of the Home Secretary. So those qualifying are treated favourably compared with other applicants.

As has been said, the subject was debated in another place, and in recognition of the particular circumstances of these women, the then Home Secretary indicated that she would be prepared to consider exercising discretion on the application in respect of the good character requirement, should any of these women apply in the future and this issue arose. That statement has force, not just policy intent; so if one of these women wished to apply, and had committed an offence that would prevent her from meeting the good character requirement in normal circumstances—the guidance on the website on those criteria is quite specific—the Home Secretary would be willing to consider overlooking it.

The Home Secretary also indicated that she would be prepared to consider, in exercising that discretion, the caveat that, while we are prepared to exercise that discretion if necessary in these particular circumstances, we do not think it wise to amend the law in this respect. To remove the legal requirement in this case would, we are advised, set a precedent for removing it from other sections, and we think this is an important requirement for potential citizens to fulfil. It is indeed that point that we are concerned about.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I just wondered whether the Minister was going to come on to what other sections he thought this was going to set a precedent for.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not being evasive, nor am I waiting for inspiration. The advice one generally receives is that, to mention those specific precedents could, in and of itself, set the precedent. It is a Catch-22—

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Indicated assent.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am very grateful for the nodding of the head. The hon. Gentleman is at least recognising the point I am making; he is not necessarily agreeing with it. Very helpfully and sensibly, Lord Brett, who has negotiated more agreements than the United Nations in his time—they have stood better as well, in most instances—also had a caveat to the passage that the hon. Member for Ashford read out. He added in column 1095 that the discretion of the Home Secretary would resolve the problem behind the amendment. So he recognised that the problem was there, in his common-sense statement that the hon. Gentleman read out, but he also said the discretion provision would meet the objectives. I hope I have convinced the hon. Gentleman that we support the intent regarding Hong Kong; the discretion is there—the Home Secretary said she would use it, and that is the policy of the Government—without setting a precedent that we fear the amendment could set.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I did hear the Minister’s explanation. Other members will perhaps also have been entertained by the Minister’s confirmation that making this change might set a precedent that would be relevant to other clauses. He cannot mention those other clauses as mentioning them would set a precedent. The Minister has not entirely elucidated the matter, although I understand his point. It is regrettable that this minor change has not been made; it would have been doing the right thing for a small number of women. However, I understand the Minister’s explanation and therefore I beg to ask leave to withdraw the amendment.

Clause 49

Phil Woolas (Labour, Oldham East and Saddleworth)

Very briefly, this clause is also part of the jigsaw puzzle. The clause title is a phrase that occurs in various parts of nationality legislation and, like the good character requirement in clause 48, is not a new requirement, as is explained in the explanatory notes. We are moving it into the 1981 British Nationality Act so that it sits alongside the provisions to which it relates. It does not change policy or the law in its application; it moves the piece of legislation from nationality law to immigration law. As such, it is part of the simplification process to achieve greater consistency within our legislation.

Clause 51

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Government amendments 34 and 37.

Government new clause 3—Common Travel Area.

I think that the Minister should rise to his feet.

Phil Woolas (Labour, Oldham East and Saddleworth)

Thank you, Sir Nicholas, for that ruling, which I believe is helpful to our understanding of this clause.

Let me explain what we are doing here. As it stands, clause 51 concerns the common travel area of the United Kingdom, the Republic of Ireland and the smaller islands—the Isle of Man, the Channel Islands and so on. We have moved new clause 3 to replace clause 51; I will be asking the Committee to reject the stand part motion. The common travel area derives from section 1(3) of the Immigration Act 1971, which relates to a person arriving in the United Kingdom from any of the islands or the Republic of Ireland. That has governed travel between these two countries since that time and, indeed, before it. Amendments 34 and 37 are consequential on new clause 3. I should also draw attention to the fact that amendment 31 would be opposed, although I think that has not actually been selected.

Nicholas Winterton (Conservative, Macclesfield)

No, it has not.

Phil Woolas (Labour, Oldham East and Saddleworth)

Thank you, Sir Nicholas. I would have opposed it, had it been, for consistency reasons.

The world is very different from the place it was when the common travel area came into existence. There is much more travel, and it is faster and relatively cheaper for those who make journeys. Because that is the case for legal journeys, it is also true for illegal journeys, whether they involve illegal migrants and/or those who are engaged in criminal activity. The common travel area that defines the border controls or lack thereof, is by its nature presenting a risk to border control. It is being exploited by illegal immigrants and serious organised crime to assist their criminal activity. We saw that in the press very recently, when an investigation by the French immigration forces exposed a criminal gang that was bringing people in club class from Paris to the United Kingdom, via Ireland. That took advantage of the common travel area. Our evidence is that there are some 8,000 immigration offenders travelling each year between the Republic of Ireland and the UK on air and sea routes alone.

Crispin Blunt (Conservative, Reigate)

Could the Minister explain to the Committee how many immigration offenders are in the United Kingdom? We have to put that 8,000 in context.

Phil Woolas (Labour, Oldham East and Saddleworth)

We apprehended 28,000 clandestine entries last year. That is not visa abuse but, in layperson’s terms, people who have got in on the back of a lorry. Overall, in terms of people here illegally—I am picking this phrase very carefully—I think the hon. Gentleman knows that nobody knows. By definition, one does not know.

Crispin Blunt (Conservative, Reigate)

The point I wanted to make is that when the Minister says 8,000 immigration offenders, it could be drawn from a category of over 1 million people resident in the United Kingdom.

Phil Woolas (Labour, Oldham East and Saddleworth)

The figure of 8,000 is our estimate of the clandestine and organised illegal routes. To compare like with like, you would have to look at the following. Basically, we believe the criminal gangs try to organise routes through our ports, particularly through Calais to Dover, through the tunnel and on the ferries. The more effective we have been at closing those routes off, the more alternative routes have come into play—particularly Ireland.

Let me answer the hon. Gentleman’s question more specifically. To give a like for like comparison, the number of illegal immigrants detected in Kent was 14,600 in 2001, and it was 1,800 last year. My hon. Friend the Member for Dover has raised this issue in the House on many occasions and I would argue that this figure shows the success of the border controls there. The number of detections through visa fingerprinting in 2008 was around 4,000. That refers to cases identified for the whole of the system where the detection has been based exclusively on fingerprints. I hope that gives the hon. Gentleman some comparison for the scale of the problem we are dealing with.

Paul Rowen (Liberal Democrat, Rochdale)

On the Minister’s figure of 8,000, the Republic of Ireland operates a border system, so if someone is going from Calais to Dublin, are they not apprehended by the Irish authorities, or are they not operating a border system?

Phil Woolas (Labour, Oldham East and Saddleworth)

That is a very good point. The Republic of Ireland has indeed introduced an electronic borders system similar to ours. We are responsible for the United Kingdom, however, and of course the Republic of Ireland’s visa arrangements are up to them. It is also true, of course, that the European Union non-Schengen countries include the Republic of Ireland as well as the UK, so we do have common cause with Ireland, but the problem goes both ways. The argument that the hon. Gentleman has put is put very forcibly the other way round in Dublin, because of the number of transits and because the Republic of Ireland is an EU country. The powers that we are asking for in the new clause and the amendments, in rejecting the proposed clause as it stands, do exist in similar terms in Ireland, including at the land border, as I will go on to argue.

The hon. Member for Reigate, in asking about the 8,000, raises an important point. Our particular concern is about organised crime. The claim has been made that our proposed clause abolishes the common travel area. It is not our policy, nor our intent, nor the practical impact of our proposals to abolish the common travel area. We have reconfirmed our commitment to that, because of the social and economic benefits that it brings. It is the third-country nationals who are illegal who are of concern to us. Our changes will not prevent British citizens or Irish nationals entering freely, as they do now, and we do not anticipate that there will be a noticeable impact on the journey for the vast majority of passengers. The CTA is based on the principle that, once a person has been granted leave to enter one part of the CTA, they will not normally require leave to enter the UK. That point does not change. Those who enter the UK from another part of the CTA will be able to enter freely, unless they fall within an excepted category—for example, those who are subject to an outstanding deportation order.

In order to preserve its benefits, we need a proportionate response to the risks we now face. We remain committed to working with Ireland to further secure the external CTA border—the point the hon. Member for Rochdale makes—but we must also act to protect our borders by allowing for immigration controls on those travelling on intra-CTA routes. The concept of immigration control within the CTA is not new. The Irish Government do not believe such controls are inimical to the CTA; as I have said, they have applied an immigration control on third-country nationals arriving directly from the UK for more than a decade.

The UK does not currently have the clear legislative power to control non-European economic area/third-country nationals entering the UK from elsewhere in the CTA. The Government believe that that is simply not acceptable, especially as we need to tighten our borders in order to face up to the risks that the modern world faces and the increase in global movement of people. That is why we are seeking to reinstate the Government's original clause, which is new clause 3, which was taken out in the other place, to enable controls on air and sea routes for people travelling within the common travel area and an ability by Order in Council to control the land border, subject to parliamentary approval, under section 10.

We believe that the power will be used proportionately on all routes. Those travelling by air and sea between the Republic of Ireland and the UK will be required to carry a passport or national identity card. We will also use the e-Borders system to increase our ability to respond proportionately to threat. We propose a very modest use of the power in relation to journeys from the Crown dependencies, the islands, because we know that the risk is much lower, although I must guard against displacement—the possibility that the tougher a control is made, the more displacement can occur to other areas. There are examples of small air and sea craft being used to get round our border controls, for purposes of illegal migration and illegal entry of goods.

Damian Green (Conservative, Ashford)

The logic of the Minister’s argument is that there are weaknesses in the Irish Government’s border controls. Does he think that Irish border controls are better or worse than UK border controls?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman’s policy of opposing e-Borders, or the bits of them with relevance to the question, would, if applied to the Republic of Ireland, create an open back door into the United Kingdom. That is the practical answer, and the hon. Gentleman’s policy needs to change. As he knows, and as I said on Second Reading, I am not responsible for border control in the Republic of Ireland, and I imagine that if I suggested I were there would be severe political implications, for which I should not want to be held responsible.

The hon. Gentleman makes a good point, however, in that there is a challenge for us all—I think that the question was raised on Second Reading—with respect to the benefits of travel by Irish nationals and UK citizens between our two countries; the island dependencies are relevant as well. How do we keep the advantage and not disrupt the travel experience, and yet have effective control of the border? The powers that we are taking are powers to require the carrying of identification. They are not powers—except with respect to third-country nationals, for whom we would want to take those powers—to stop travel. We cannot, under the powers, restrict freedom of movement for Irish nationals and UK citizens; this is about the third-country nationals.

Clause 51 as it stands prevents any form of immigration control on those who have arrived in the UK over the land border between the Republic of Ireland and Northern Ireland. I want to make it clear that both political and practical considerations mean that fixed or routine controls on the land border are not a viable option; but that does not mean that we, or the Republic of Ireland, should do nothing. Tightening controls on air and sea routes without making provision for any activity on the land border would increase the risk of displacement and at the same time reduce our ability to tackle it. We would push the criminal gangs on to the land route—those that are not already using it. That would clearly undermine our intention of strengthening the border and, indeed, reforming the CTA.

We propose, on the land border, the capacity to mount targeted, intelligence-led operations in response to the level of threat. There will be no routine presence at the border. We will not require persons crossing the land border to carry a passport or national identity document.

Paul Rowen (Liberal Democrat, Rochdale)

Given the past history of the troubles in Northern Ireland, surely we already have powers to stop anyone moving between the borders, without the need for the present imposition. If not, what did we do during the troubles?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman asks the question that I asked when being briefed on the debate in the other place. We do not currently have the clear power to control persons entering the UK by that route. As it stands, clause 51 would prevent us from having it. In relation to immigration—not in relation to other powers for which the Bill is not responsible—if we have reason to believe that illegal migration is taking place across that border, we do not have the power to deal with it. I ask the Committee to give us that power.

Paul Rowen (Liberal Democrat, Rochdale)

I hear what the Minister says but he talked about criminal activity. There seems to be a great deal of confusion in the Home Office about the use of the powers.

Phil Woolas (Labour, Oldham East and Saddleworth)

There is no confusion in the Home Office. There is an urgent request to Parliament to grant us the power that we need. I agree that there has been confusion over the interpretation of what is being proposed, for good and perhaps not such good reasons. The hon. Gentleman will be aware of the potential misrepresentation of the policy in parts of the United Kingdom and in Ireland. Again we come to the crux of the powers we are seeking. To stop immigration and customs abuse, we believe that our officials need those powers. Currently, we have to deal with those activities that may be related to criminal activity after they have taken place. With the powers, we will be able to deal with them at that border, as we do at airports and other borders.

Paul Rowen (Liberal Democrat, Rochdale)

I am listening very carefully to the Minister’s explanation. He quoted a figure of 8,000 illegal immigrants. Page 8 of the summary table in the impact assessment, which refers to the 10-year cost or benefit, includes the reduction in imported asylum cases, and abuse of the immigration system, as not quantified; increased border security as not quantified; the reduction in the number of illegal migrants and potential reduction in illegal working as not quantified; and the reduction in cross-border crime, including serious organised crime, as not quantified. If the Minister is seriously asking us to accept his amendment, he needs to do a lot better than the other place and what he has provided in the information before us.

Phil Woolas (Labour, Oldham East and Saddleworth)

I thank the hon. Gentleman for his perceptive comments and for reading the impact assessment. The matter he raises relates to displacement. In border control, one continually deals with displacement: displacement of routes through Europe and from other parts of the world into Europe, and displacement of criminal activity in relation to drug smuggling. For example, because of the success of our forces in the Caribbean, cocaine smuggling from South America is now often displaced to western Africa. He will have seen reports of the operations to stop cocaine smuggling via the Republic of Ireland. I refer him to the case last year where we tracked across the Atlantic a yacht bound for Ireland. In terms of the overall impact, there is no figure, as he rightly points out. There are other factors to bear on that. Estimates and impact assessments have to be justifiable. They are not based on the whim of the Minister. My figure of 8,000 relates to the number of people who we estimate, through our intelligence and security forces, have been able to abuse that border—not just the land border, but the air and sea routes as well.

No one knows exactly how much abuse there has been. We use intelligence from, for example, country of origin, those who have been involved in people-trafficking routes and the underground. It is not a scientific process, therefore. I can assert, however, with absolute certainty that there is an Achilles heel in our border control. The measures on the common travel area are designed to address that.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

May I follow on from my hon. Friend’s point? If I understand correctly, the Minister said that we cannot make an estimate simply because there will be displacement, but surely if the Government are ratcheting up safeguards, that displacement will, logically, be smaller. I am surprised that the Minister and his officials cannot estimate what reductions might be achieved.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman makes a valid point. Clearly, we believe that although strengthening the border will displace activity, the effect of that will be diminished by putting that protection around us. It is not normal for an impact assessment to quantify the social benefits, which was one point that was made. When considering clamping down, we have not looked just at the impact of the Bill. In my view, the electronic borders will be the biggest beneficiary of strengthening that border, along with finger-printed visas.

In addition to my point about displacement, it would be misleading to consider the specific impact of the Bill in isolation and divorced from our other measures, and that it might be said—not by you, Sir Nicholas, because you would be impartial, as ever—that my claims were unfounded, exaggerated, under-exaggerated, or whatever. I have had recent experience in the House of making specific claims on numbers—I think hon. Members know what I am talking about—so I decided on a different approach. I congratulate the hon. Member for Rochdale on spotting that. I did not think that anyone would, but they did.

Damian Green (Conservative, Ashford)

I admire the Minister for reading his brief with a straight face. He said that immigration controls are an important part of the legislation that he is trying to reintroduce into this part of Bill, and that there will be no routine human checks at the border between the Republic of Ireland and Northern Ireland. I gently suggest that if he told the hon. Member for Dover, whom he praised for his work on the matter, that there would be intelligence-led operations at Dover, but that there would be no routine immigration presence to stop illegal immigration there, the hon. Gentleman would have a word with him because he would think that that was inadequate. As there will not a routine presence at the border, for sensible reasons, to claim that it will make a serious difference to illegal immigration across that border does not wash.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am grateful again, because the hon. Gentleman has given me the opportunity to try to convince him of the folly of his own policy. The land border between the Republic of Ireland and Northern Ireland is as I have said, and I do not believe that any hon. Member would seriously propose the sort of control of the land border that we have in the constituency of my hon. Friend the Member for Dover and nearby—[Interruption.]. The juxtaposed border in Calais is directly relevant, as my hon. Friend said.

The position of third country nationals is captured by the e-borders passenger records—the hon. Gentleman quoted what I said about the land border—intelligence-based operations and risk assessment. We have that weapon at our disposal on air and sea routes, and we also have the passenger records from the e-borders arrangements, both for those coming into the United Kingdom from the Republic of Ireland and for those going to the Republic of Ireland or to the Crown dependencies. We are developing memorandums of understanding, because there is a displacement point relating to small ships. When I say that we are not taking those powers and not abolishing the common travel area, that is in the context of the new information that we have. We already have that intelligence when a passenger gets on a plane or boat, just as we do when someone arrives at Calais, to which we have effectively exported the border, or when someone gets on a plane in Lagos or New York. That is the great advantage. The e-borders system requires information on passengers and crew relating to their identity—name and passport number, just to reassure the libertarians—and we obtain that information from carriers operating to and from the UK.

The Irish are developing their own version of that proposal. The total e-borders data to be collected from carriers operating air and sea routes between the UK and Ireland have that information, as with all other routes to and from the UK. In that way, my proposition that the passenger experience will not be noticeably disrupted stands. In fact, the vast majority of passengers already carry their passports or identity cards, but we have, of course, had conversations with the carriers on that.

My fear with clause 51 as it stands is that in attempting to maintain the common travel area as was, it is not fit for purpose for the modern world. I refer the Committee to an article in the Daily Express of 14 May 2008 headed “Now migrants are smuggled in club class”, in which an investigative journalist exposed an illegal route into the UK through the Republic of Ireland. It reports the exposure and capture by French forces of people-traffickers using a route from Paris, organised from a small flat just opposite the Gare du Nord, to the UK via the Republic of Ireland through the loophole I described. The people-traffickers were charging up to £10,000 for each person to be smuggled in, booking them on club class on the airlines from Dublin to the UK and making £500,000 in just nine months. The French immigration authorities said that the migrants were corralled in safe houses before being taken to small regional airports in France for flights to Ireland, bound for Britain. They said that they had worked closely with the UK Border Agency to expose a highly sophisticated route.

The hon. Member for Ashford, having been approached by the Daily Express journalist for his comments on that successful operation, said:

“We should be worried that smugglers are confident that they can bypass our passport and visa systems. These should be the strongest part of our defences against illegal immigration, certainly not a weak spot.”

If he wants to close down the weak spots, he should support new clause 3 and reject the advice of his noble Friends in the other place who harked back through rose-tinted spectacles to days that I suspect never existed. We should put into place a modern border control that gives us the advantage of the common free travel area but makes real the words of the hon. Gentleman.

Damian Greenrose—

Phil Woolas (Labour, Oldham East and Saddleworth)

I will give way because I have another quote.

Damian Green (Conservative, Ashford)

I am delighted that the Minister spends his time keeping abreast of not only the classics, but all my quotes in the Daily Express. He said specifically that he will rely on intelligence-led operations. I invite him to commit himself now to support our new clause 2, which would set up a proper border police force so that precisely the weaknesses that I criticised can be addressed by a specialist police force that will be much more effective at intelligence-led operations than the current system. That is the way to resolve weakness at the borders.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman says that I am relying specifically on intelligence-led operations, but I am not relying only on them. I repeat that the e-Borders system that counts people in and out of this country is the first introduction of border control since its abolition in 1994. The hon. Member for Eastleigh (Chris Huhne) pointed out that that is the first reintroduction of border control. I am teasing the hon. Member for Ashford is because he cannot, on the one hand, come into this House with a libertarian approach towards border control and support the general thrust of the philosophy of his party, with which I disagree but respect, and, on the other hand, regularly give quotes to tabloid journalists to show how tough his party is. His party has to make its mind up. I suspect that the vote on new clause 3 will separate the two parties.

Damian Green (Conservative, Ashford)

The Minister has already admitted that he has problems with figures. He has just said that 1994 was when border controls were removed, but he will know that it was actually 1998 when border controls within the European Union were removed. Furthermore, since we are discussing Britain and the Republic of Ireland, he might note that the two countries are members of the EU, so it was actually his Government that removed border controls between those two countries.

Phil Woolas (Labour, Oldham East and Saddleworth)

The abolition of border controls started in 1994.

Damian Green (Conservative, Ashford)

Not inside the EU.

Phil Woolas (Labour, Oldham East and Saddleworth)

My Government, as I have said before, continued that process, but we are now reintroducing those border controls and I am appealing for consensus on that.

In relation to the comment about the EU, we rightly did not sign up to the Schengen agreement and nor did the Republic of Ireland. To address the hon. Gentleman’s point about travel movements between the two countries, we have the benefits of the common travel area and we now require the powers to control illegal or potentially illegal third country non-European economic area activities. The e-Borders system and the powers in the new clause give us the opportunity to do so.

Sir Nicholas, I am straying off the subject of new clause 3, so I will draw my remarks to a close.

Nicholas Winterton (Conservative, Macclesfield)

May I help the Committee? This is, of course, a clause stand part debate and it is my understanding that the Government will vote against clause 51. As part of that debate, we are also discussing Government amendments 34 and 37 and Government new clause 3, but of course we will be dealing with those measures formally, as and when we reach them.

Crispin Blunt (Conservative, Reigate)

I have responsibilities for security and counter-terrorism in our home affairs team, which is why I am leading on the subject for the Opposition.

I may have to apologise, Sir Nicholas, for the fact that my arguments are not cast in the emollient manner shown by my hon. Friend the Member for Ashford. It is difficult to share that manner, given the pasting that the Government’s arguments have already taken. The best that the Minister has been able to do is to adduce a misleading quote from the Daily Express in support of his arguments. That gives a sense of the quality of the case that is being presented to the Committee.

In the light of everything that has happened to the Government and to the Minister over the past few months, it is astonishing that they have returned to a measure that was so roundly defeated in another place. Their actions have all the hallmarks of their wearingly repetitive inability to listen and learn from their experience. One wonders if they are now so punch-drunk, because of everything that has overtaken them, that they cannot change direction, even if common sense dictates that they should and even if the margin of a vote by 193 to 107 in the other place suggests that there are one or two problems with their proposals.

Typically, the measure began life in a consultation called “Strengthening the Common Travel Area”—an example of the Orwellian doublespeak that is another of the hallmarks of new Labour, as it will plainly weaken the common travel area and, some people argue, effectively abolish it altogether. Although the arguments adduced for the measure have changed since the beginning of the consultation, they are largely based on unsupported statement and instinct. As we heard in the interventions from the hon. Member for Rochdale, they are also based on unquantified assumptions.

The proposals are offensive in principle to many of our fellow citizens. They are careless of the constitutional implications for Britain’s relations with her dependencies, and their effectiveness will be undermined by a gaping hole in the practical applications of the measures—namely, the UK-Ireland land border. Furthermore, they will be expensive and damaging to the tourist industry; and, even according to the Government’s figures, they will entail a significant cost. A much more sensible alternative strategy is available to achieve the objectives that the Government have set themselves.

I shall address the so-called strengthening of the common travel area. The Minister insisted, as did Lord West in another place, that neither the original Bill, nor the amendments before us, will undermine the common travel area. I am afraid that I fail to see how that can be. Government new clause 3 will amend the following words in section 1(3) of the Immigration Act 1971:

“Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act”.

If that wording is to be struck out, will it not now be the case that those persons entering the United Kingdom from the Channel Islands, Isle of Man or from the Republic of Ireland are subject to control? Have I misunderstood the common travel area as a concept altogether? Was the free passage of individuals without the need to present identification or submit themselves to immigration controls never its true purpose?

Furthermore, the Minister seeks to amend the 1971 Act explicitly to exclude the common travel area when defining embarkation and disembarkation. The new clause will, if passed, strike from the Act the lines:

“or elsewhere in the common travel area”,

so that embarking for a local journey or disembarking after a local journey applies only within the United Kingdom. If striking the common travel area from the exemption in terminology is not altering the very nature of the common travel area, I do not know what is.

A brief trawl through the Government’s previous utterances on this matter reveals their true intentions. The original consultation document makes it clear that the Minister’s predecessor at the Home Office intended the legislation on the common travel area to go further. The consultation states that the Government intended to

“carry out checks on passengers and their documents on sea and air routes arriving and departing from the UK to the Republic of Ireland for border control purposes. The nature of the examination by an immigration officer will depend upon a passenger’s status as a CTA national or a non-CTA national”.

When the workability of that was roundly rejected in the responses to the Government’s consultation paper, the Government scaled back their ambitions for the plan. The rather more conciliatory ministerial response to the consultation was that

“the government has listened... In light of your feedback we are clear that we will not replicate other international routes by introducing traditional fixed immigration controls on all air and sea routes between the Republic of Ireland.”

It is perfectly clear, therefore, that the intention was always to remove the common travel area, despite the title of the consultation document, “Strengthening the Common Travel Area”.

I now come to the delicious irony of clause 51, which was inserted by their lordships to limit the use of Orders in Council. That sits alongside the Prime Minister’s presentation, shortly after he became Prime Minister, on constitutional reform and reducing the ability of Orders in Council to, in effect, legislate for the United Kingdom. Now, their lordships are insisting on removing the ability of Orders in Council to be used in that way. That irony should not be lost on the Committee when considering whether the clause should stand part of the Bill.

As the shadow Minister for counter-terrorism and security, it is my responsibility to listen carefully to the arguments advanced for the measure, particularly on security and counter-terrorist grounds. However, we should consider that the common travel area has served the peoples of our islands since the 1920s. It is a remarkable testament to the cool heads that prevailed immediately after the partition of the island of Ireland that all parties sought to maintain a common travel area. The CTA was maintained throughout the period of the troubles.

I realise that at present we face a very real terrorist threat in the United Kingdom, but it has not yet led to attacks on the scale or frequency of those we faced from the IRA. At a time when the IRA had bases in the Irish Republic and was planning attacks on the British mainland, we continued to allow the principle that travel between the Irish Republic and Northern Ireland and travel from both to the British mainland should be unfettered—that passports and other documents would not be required. Why then today does the minister think the CTA must be fundamentally altered?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is making very important points, I acknowledge; however, his argument is based on a misunderstanding of what the CTA is. It is based on the principle that once a person has been granted leave to enter one part of the CTA, they will not normally require leave to enter another part. Our proposals protect that principle, but requiring documentation can address the problem of third-country nationals, which is not what he is talking about at the moment. Does he accept the intent behind the policy?

Crispin Blunt (Conservative, Reigate)

I accept the intent but not the practicality. The perfectly obvious alternative is to ensure that the CTA works. It is around the boundaries of the CTA that one wants to achieve control. One does not want to start setting up double systems of control, at considerable inconvenience and expense to all concerned.

David Hamilton (Labour, Midlothian)

I have always understood that when any flight comes in from Ireland to any part of the United Kingdom, special treatment is given to that flight. That has always been the case. If a flight comes into Edinburgh from Dublin, the passengers do not go through the same system as everyone else. They never have done. There has been a special lane for Irish flights, especially during the troubles.

Crispin Blunt (Conservative, Reigate)

Of course there was a special lane during the troubles, because there was a special threat, but there was not the need to change the immigration controls system within the CTA, even during the troubles.

I have carefully examined the arguments made by Lord West in another place and I listened to the Minister this morning in the hope of hearing convincing arguments on why we should override the constitutional, emotional, practical and financial objections to the measure, but I am afraid that none of the arguments stack up on examination. As part of the standard pattern of the Government scratching around for third-party endorsement for supposed security measures, SOCA suddenly produced new arguments about trafficking in Northern Ireland two days before Report in another place. The figure of 8,000 was introduced at a rather late stage.

Lord West referred to

“examples of people of international counter-terrorism interest”.

What does that mean? The Government have to make a better case for making substantial changes in this area than a statement as bland and as undetailed as that. Lord West used the following metaphor:

“I believe that this is happening because we are tightening up our borders by a raft of means. Rather like water finding an opening in a ship when it is sinking, those who have been thwarted are pushing at every single door. I have no doubt whatsoever that something has got to be done to block this breach in our defences.”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1111.]

I concede to Lord West in expertise on sinking ships. He was a distinguished commander in the Falklands when HMS Ardent had the misfortune to sink after being attacked by the Argentine air force when it was under his command. However, the gaping hole blown in the Government’s argument is the UK-Ireland land border. That hole remains because it is impractical to address it. I will return shortly to how one could police that border and explain why it is impractical.

If one is going to come forward with measures such as this, one should understand what they mean to the people who will be subject to them. I turn to the arguments put forward by Lord Glentoran in another place. In the debate on Report that led to this measure being so roundly rejected, he said:

“It occasionally gets forgotten that Northern Ireland is as integral a part of the United Kingdom as Yorkshire or Lancashire. I do not know what the Yorkshireman and the Lancashire folk would feel if they had to provide identification in the form of passports to travel from one county to the other. That is effectively what this Bill is doing for the Northern Ireland folk. Over the years we have had free travel, which has worked wonderfully. The reason that it was necessary and still is necessary is that those who benefit from it are, largely, the poorest in our society. A large number of people from both Ireland and Northern Ireland earn their living in England and Scotland—not so much in Wales. They need to be able to travel freely, easily and without hassle to see their families from time to time when they can.”

My noble Friend went on to say of Lord West:

“I explained to the Minister this morning that the people of Northern Ireland will see this part of this Bill as another way of getting rid of them out of the United Kingdom. I am afraid that, whether you shake your heads or not, that is how it is perceived. I could talk to you very civilly and say that maybe it is not like that, but that is how the people in Belfast, Armagh and Londonderry will see it—as another imposition and another move one step away from the unity with this nation and this Parliament for which most of those in Northern Ireland have been fighting for the past 40 years.”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1097, 1098.]

These are emotive and important matters.

In support of that argument, Lord Kilclooney said:

“I agree with the noble Lord, Lord Glentoran: it is offensive if it is suggested that the people of Northern Ireland are to be treated differently from people elsewhere in the United Kingdom. Is that because there is water between Northern Ireland and England? If so, why are the people of the Isle of Wight not treated differently?”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1107.]

A sense of identity and nationality are important to people. Therefore, the bar that one has to jump in introducing such measures should be correspondingly high.

The measure is also careless of the constitutional relationship between the United Kingdom and our Crown dependencies, particularly the Channel Islands. The Minister will be familiar with the arguments put forward by Lord Goodlad, who sits on the cross-party Constitution Committee in the other place that was quite devastating about the consultation, particularly with regard to the Channel Islands. He reported:

“We found that such consultation as did take place gave the impression of being muddled and tardy, showing little appreciation of the constitutional relationship between the United Kingdom and the Crown dependencies. The Chief Minister of Jersey told your Lordships’ Select Committee that there is a mismatch between the policy intent and the possible effects of the legislative change.”

He then quoted Senator Le Sueur, who said that that

“opens the way, at any time of the UK Government’s choosing, for the significant change of practice that they say they do not presently envisage”.

Senator Le Sueur added:

“There are absolutely no safeguards to prevent such controls being implemented or to protect the long-standing rights of Channel Islanders to travel freely to the United Kingdom, in accordance with their constitutional relationship as set out in numerous Royal Charters”.—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1101-1102.]

The Select Committee of the other place concluded that it was

“difficult to reconcile the modest policy aims stated by the Government (of occasionally, on the basis of intelligence, stopping and questioning people arriving from or departing to the Crown dependencies) with the far-reaching legal powers claimed by the proposed amendment to section 1 of the Immigration Act 1971 (which would enable fixed and routine border controls). This mismatch is in and of itself constitutionally inappropriate: Parliament should not grant to Government wide legal authority in excess of the powers properly needed to implement a proposed policy.”

Those senses relate to what this means for the people of Northern Ireland and the people of the Crown dependencies. Also, as the Government are having some difficulty agreeing a memorandum of understanding with the states of Jersey, I should be grateful if the Minister tells us whether things have improved since the failure to get the states of Jersey to sign up to this before report of the Bill in the other place.

I will now discuss the practicality of the measure. The gaping hole in this is the land border between Northern Ireland and the Republic. The noble Lord West said he was familiar with that land border. I am too: I had brief familiarity with it in an earlier incarnation, and as a spokesman for the Conservative party on Northern Ireland, visiting there in 2002, to examine what was then the significant problem of gasolene smuggling over the border. It is easy to get lost between one side of that border and the other, and to be unsure of exactly which side one is on. Therefore, the practical policing of it is immensely difficult and produced a series of embarrassments to British soldiers trying to track the IRA during the troubles. You, Sir Nicholas, and other ex-soldiers such as I, will be more than familiar with that. I do not understand the practicalities of policing that border—of trying to differentiate between nationalities of the common travel area and non-CTA nationals. In this, happily, post-troubles environment, people who live in that area and travel around the border will not be anticipating carrying identity documents.

That has led the Northern Ireland Human Rights Commission, which has carefully examined a number of these details, to be concerned about the basis on which identification will take place. Its concern is that racial profiling will occur. It referred to the Republic of Ireland’s taking measures because of its concern about entry to the Republic from the UK—some of the gardai’s actions have bordered on racial profiling. The Minister will be aware that our authorities in Belfast have not been entirely immune from that; there was a substantial payout to a UK citizen of Nigerian origin who was improperly detained in that city.

Another argument advanced was that the measures would help address the source of organised crime. As the Northern Ireland Human Rights Commission says in its evidence to the Committee,

“It is unclear why, if agendas unconnected with immigration control are part of the CTA reforms, Government overlooked mentioning this in the CTA consultation documents, it is also unclear how the proposed routine immigration control activity on the land border ‘targeting non-CTA nationals’, could in any way address crime or security issues that are, on experience, much more likely to involve British and Irish citizens.”

Given my experience—a little dated now—of seeing the nature of serious organised crime, particularly that of petrol smuggling across the border, either United Kingdom or Irish citizens were certainly the commissioners and executors of that scale of crime.

If the land border is to be policed properly, the Northern Ireland Human Rights Commission also raised concerns about the implications and whether the powers would be reminiscent of emergency-type powers that could act contrary to the normalisation of security arrangements under the Belfast agreement. Conservative Members oppose such a move. The scrapping of the common travel area and the placing of new burdens on those travelling between different parts of the United Kingdom, and between the United Kingdom and the Channel Islands, and the Isle of Man and, above all, the Irish Republic would be bad for business and an inconvenience to passengers and would, in any case, prove unworkable.

The Government say that such a provision will help fight crime. We do not believe that it would do so to a significant degree, nor do we believe that its impact would justify the measure. We believe strongly that, whatever potential benefits the amendment might bring, the Government have signally failed to explain their case, either on the record or by any other means. If there are to be distinctions between means of entry under the Bill, by which I mean if legislation bringing in increased controls is to apply exclusively to arrival by sea and air, that will surely encourage travellers to favour land routes between the Irish Republic and Northern Ireland. It must be the case that would-be terrorists or members of criminal gangs who already favour the land route would continue to do so, and it calls into question the logic of scrapping a CTA for air and sea travel. Furthermore, the impact on those carriers who operate between the north and the south would be substantial. Any additional burden placed on travellers will again drive them to use the land route, which, in effect, could not be policed.

Neither the noble Lord West in another place nor the Minister here has made a clear enough case for such a change in the law to persuade us to accept the Government’s amendments. Do they have evidence that is more substantial than the line used by Lord West that there are some people of interest in international counter-terrorism? If so, we really need to do better than that and to know and understand matters. We can then get a proper handle on why the measure is being brought forward. If the issue is so important, why is the measure being rushed through now rather than being brought forward under another Bill that will permit more time for consideration and allow it to find its place with the other measures that have been postponed for examination?

The hon. Member for Rochdale alluded to expense. The benefits are unquantified and unquantifiable, but some of the costs have been identified. The wide-ranging estimate of border control staff costs is between £2.5 million to £4.5 million each year. If there was to be an attempt to make the measure work by policing a land border properly, the figures would rocket upwards. The reduced output to tourism over the medium term due to reduced travel is estimated at approximately £43.5 million over 10 years. If the measure resulted in queues and inconvenience at airports and seaports, in particular for the Channel Islands where tourism is such a vital part of their industry, the scale of that damage could be significantly understated in the impact assessment.

The Minister stressed that his proposed changes do not affect leave to remain but simply add an element of control. The Government have consistently taken opportunities to increase control and to accrue powers to the state. The Minister underestimates the distaste that our citizens now have for the constant demands for further paperwork and further forms of identity as they go about their business within their own borders. That should apply no less to our citizens—fellow subjects—from Northern Ireland than to those from anywhere else in the United Kingdom. As expressed in the debates in another place, Northern Ireland is as much part of the United Kingdom as Surrey or Lancashire. There may well be benefits to the police or to customs officials if they could insist on seeing paperwork from travellers between those counties, but it would be the most enormous affront to their residence. The same applies to those in Northern Ireland, who face the prospect of an age-old travel regime being ripped up without satisfactory justification.

The powers of search that apply at our ports and airports are not inconsequential, as I am sure the Minister knows from closely following the debate when the new code of practice for examining officers was recently revised and approved by statutory instrument. The power for further passport checks adds to feelings among ordinary passengers that they are going about their business under a cloud of suspicion. Also, with this Government, when new laws bringing in new controls are introduced, there is a tendency for them to be extended, for their scope to be enlarged and for the powers to be abused. Mission creep is endemic to the Government’s approach to law and order and counter-terrorism. The Opposition Benches are properly sceptical, and sadly we must be no less sceptical when organised crime and terrorism are cited as the reasons for a new measure without satisfactory evidence. The Government have lost the benefit of the doubt in this area. That is, by the way, another reason why we need a new Government with a new mandate.

I have considered the financial aspects of the measures, but we have to present an alternative to meet the concerns expressed by the Government. Obviously, that would be improving the external boundaries of the common travel area in co-operation with the authorities of the Irish Republic and of the Crown dependencies. Why can we not follow that alternative route? Should it not be possible to put in place controls in the Republic of Ireland? They could be satisfactory, so that fraud such as the one that the Minister adduced from the Daily Express can be properly identified—accepting that that one was properly identified.

Surely there is no lack of willingness on the part of the Irish authorities to co-operate in that area. The Minister has already told the Committee that they are concerned about illegal immigration into the Republic of Ireland from the United Kingdom. Surely that is an area of obvious common interest. Setting up the proper e-Borders scheme for both the United Kingdom and the Republic of Ireland would achieve the objectives set out by the Government. That is an obvious alternative strategy for us to pursue.

I want to conclude by asking the Minister to tell us why he sees the steps in the measures as so critical. Are there reasons that he has not yet been prepared to share with the Committee? The amendment effectively scraps the common travel area, discriminates between different British subjects and burdens the residents of the Channel Islands and the Isle of Man, as well as citizens of the Irish Republic and Northern Ireland. It would end the long-established principle of the common travel area and it would do so at significant cost, for the Government and the travel industry. Now is hardly the time to be undermining tourist operators embraced by the common travel area across the United Kingdom and in the Republic of Ireland and the Channel Islands.

An account of the distinguished service of the noble Lord West in the Falkland Islands described the time after his ship was hit by an Argentine bomb:

“Barely an hour after the first Argentine bomb had struck the stem of HMS Ardent as it stood guard over the main Falkland landings, the ship’s steering was gone and the frigate was no longer capable of defending itself. West had no choice. He gave the order to abandon ship.”

The policy produced by the Government is no longer capable of defending itself. I suggest gently to the Minister that it is time for him to abandon ship.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I start by reassuring the Minister that although in an earlier exchange he referred to Liberal Democrat party policy on immigration being libertarian, I know that he actually knows it is nothing of the sort: it is firm, fair and effective. I would not want his suggestion to stay on the record without my challenging it. That is why we have long campaigned to reimpose the exit controls to which the Minister referred earlier.

It is a pleasure to follow the hon. Member for Reigate, who gave a passionate defence of the common travel area. It was only slightly marred, perhaps, by his original reference to sinking ships in the Falklands, although he recovered his position slightly in his latter reference to that. He had many valid points that I shall not seek to go over again. However, the Minister, opening the debate on this clause, underlined the close

“social, economic and cultural ties”

that exist between the Republic of Ireland and the United Kingdom. He recognised that, but regrettably the measures that he proposes do not seem to take those ties into consideration—or, certainly, the considerable social and economic impact that these proposals will have. That is even though those impacts have been carefully identified; the cost to tourism, for instance, is clearly listed, as are the staffing costs. There is recognition, then, that these proposals have an impact, which is documented; yet the Government are seeking to proceed with them in any case.

The proposals clearly will impact significantly on ethnic minority communities, and I believe that my hon. Friend the Member for Rochdale will also seek to take part in the debate on this clause, perhaps with a more personal angle on the matter that we are discussing, the common travel area. However, we have concerns on, for instance, the proposals for a very restrictive list of documents that would be acceptable—notably, just a passport or identity card. We are also concerned about the potential for a criminal offence to be created or made if someone travelling refuses to produce documents.

We welcome the fact that the Government have given some assurances over there being no fixed checkpoints on the land border, but like the hon. Member for Reigate, I should like further clarification on precisely what sort of targeted operations it will be possible to mount in a border area that the hon. Gentleman knows much better than I, but which is clearly fluid. There is a lot of travel, but the precise location of the border is not necessarily known and many participants in criminal activities are, indeed, British or Irish citizens, so some clarity from the Government of precisely how they think these targeted operations will be able to deliver might provide some reassurance. The costs, as the hon. Gentleman has outlined, of the infrastructure that might be required to implement this may well have been significantly underestimated.

I have one further point to which I hope the Minister might be able to respond. As he knows, we have our differences on some aspects of the e-Borders system but if the Republic of Ireland develops its system alongside the developments in ours, does that create the potential for reducing checks at any point in future? Our position is that the Minister has said and done nothing in his opening remarks that leads us to believe that the clause should be removed in the way that he wishes. Unless he can provide clarification of an outstanding nature, I suspect that we will join the Conservatives in a Division, should the matter be pressed to a vote.

David Anderson (Labour, Blaydon)

I want to talk specifically about the situation of the land bordering Northern Ireland. As someone who has spent much of the last 20 years working in Northern Ireland, I am pleased by the progress that is being made. One of the great experiences of the last 10 years has been the fact that every time someone travels from Northern Ireland to the Republic, they no longer have to go through the checkpoints and controls that were once there. Despite the fact that the CTA was in place, it was routine for people to be stopped and searched. That was not because there was immigration control down that side; it was because it was our soldiers who had to do that. One of the great things is that that no longer happens. However, even with those things in place, there was clearly an easily accessible border, particularly for those who committed acts of terrorism. People were going backwards and forwards across the border with relative ease, even under those circumstances.

For the last four years, until January, I served on the Northern Ireland Affairs Committee. Two years ago, we produced a report into serious organised crime, working with the security forces from north and south of the border, and from this side of the Irish sea. The difference between the Isle of Wight and the Isle of Man, and the Republic and Northern Ireland, is the very porous border. It is not only fuel that comes over the border, although illegal fuel smuggling has reduced. That is mainly because there is no longer the financial incentive, due to the coming together of the price of fuel in the Republic and in Northern Ireland, which is now much closer than it was two, three or four years ago.

Along with fuel, there were massive amounts of cigarettes, both real and counterfeit, and huge amounts of alcohol, particularly alcohol that had been laundered and was dangerous—even more dangerous than the alcohol most of us partake in. There were surprising things such as washing powder, huge amounts of which were being brought across the border and being sold on the cheap. It was not genuine. The boxes said what it was, but there were dubious articles inside. There was a huge traffic. There were also serious concerns about the amount of people who were being brought across the border due to people trafficking and, although not listed in the figures, there was a worry about illegal immigration.

Those are real issues that must be looked into. Those activities are happening despite the fact that we have probably the best co-operation anywhere in the world between the police force in Northern Ireland and the people in the Garda. Bodies work together at every level. Security bodies work together but this is still going on. The situation is very different from that in the rest of the country, and it must be looked at.

The issues that have been raised are real, and we must look at the practicality of what is being proposed. The Minister has been talking about specific intelligence, but the response given in the House of Lords when the Minister in the other place was pressed on what he meant and what would happen in practice, was that we would

“target the odd bus, minibus or taxi, because our experience has shown that those are much more likely to be a threat”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1100.]

That might work a little, but will it really get to grips with the problem? If the border is as porous as many of us believe, how will we make a real impact in practice? Unless the Minister intends to do this seriously—and nobody is suggesting that we have total control of the border—the reality is that we will waste our time. We need to look at that.

An issue has been raised by the hon. Member for Reigate about the possibility of racial profiling. That causes real concern to those of us in the House who are interested in human rights. The experience from Northern Ireland, where ad hoc checks have been going on for some time, has seen human rights bodies, from both sides of the border, raise concerns about the fact that people are being profiled, stopped and asked questions simply on the basis of the colour of their skin. That is something that I hope this Administration will never support.

There is a real need to do this and to do it right. However, in doing so, we must ensure that we respect the fact that there are practicality issues and that we get the balance right. However, we also have to be clear that we do not want to undermine the confidence that we have built up during the past decade among the people of Northern Ireland and the Republic. Not everyone who lives in Northern Ireland wants to be part of the United Kingdom. A significant minority in that part of the world do not want to be part of the United Kingdom and we have to respect that, as well as respecting the views of the other side.

Paul Rowen (Liberal Democrat, Rochdale)

In considering new legislation, it is incumbent on all of us to weigh up the advantages and to consider how the proposals presented in the Bill deliver on their stated purpose. From this morning’s debate and the debate in the other place, it is clear that the Government have patently failed to explain to us the benefits of the changes to the common travel area.

The costs have been clearly quantified—between £2.5 million and £4.5 million in increased staffing costs on border controls and £43.5 million in loss of tourism—but the Minister has patently failed to give us any quantifiable measure of the reduction in reported asylum cases, illegal migrants or cross-border crime. If the Minister cannot quantify what the benefits will be, perhaps he would be good enough to give us the figures for the past ten years in terms of asylum seekers who have travelled via Ireland or the Channel Islands to the UK.

Phil Woolas (Labour, Oldham East and Saddleworth)

That is the point.

Paul Rowen (Liberal Democrat, Rochdale)

The point is that such figures cannot be given.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is precisely because we cannot give the hon. Gentleman that figure that we want the powers to be able to give it to him in future.

Paul Rowen (Liberal Democrat, Rochdale)

When we are considering legislation that will lead to increased costs to the Government and losses in terms of employment and tourism, that is simply not good enough. There must be some sort of figure. Both Ireland and the UK operate within the common travel area and are outside the Schengen agreement. Indeed, as has been said, the common travel area predates the Schengen agreement. We operate a common border, so we rely on existing border controls in Ireland and the Channel Islands to stop illegal migrants.

If the Government are seriously saying that those border controls are inadequate and do not stop illegal immigrants and asylum seekers, what has the Minister been doing for the past few years in terms of working with our Irish counterparts or the Governments in Guernsey and Jersey to ensure that those borders are secure? That is clearly not the point. This measure is a total overreaction to a problem. The Government are trying to crack a nut with a sledgehammer and unless the Minister can quantify the size of the nut, such measures are clearly unacceptable.

I speak as someone who is half Irish and who spent most of my early years travelling between Ireland and England every year. As the hon. Member for Reigate said, the sorts of control on which the Minister is insisting will completely destroy the common travel area. If he seriously wants to do something about stopping illegal immigrants and obtaining more information on the matter, there is a way around the problem, which was outlined in the other place in an answer that Lord West gave:

“Outside the CTA reforms we are also considering other changes. Under Section 14 of the Police and Justice Act 2006, the police have the power to require carriers to provide passenger data on specified domestic air and sea routes. That power could be extended to cover routes between Great Britain and Northern Ireland.”—[Official Report, House of Lords, 4 March 2009; Vol. 708, c. 768-9)

I put it to the Minister that at far less cost to the travel industry and to the convenience of travellers between Ireland, the Channel Islands and Northern Ireland, the Government could implement section 14 of the Police and Justice Act 2006. That, coupled with the establishment of a unified border police, which is our party’s policy, as well as Conservative policy, would provide the Government with the intelligence they need to prevent people from entering this country if there is reason to suggest that such people are doing so illegally. The controls already exist in the common travel area, operated by the Irish Government and the Channel Island Governments, to prevent illegal immigrants. Those controls, and working with our partners in Ireland and the Channel Islands and using the Criminal Justice Acts, would give all the powers the Government need to resolve what is so far an unquantifiable problem. If they cannot quantify it, one is tempted to ask whether it really exists.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Member for Ashford said in his opening remarks in our first sitting that we would deal with the consensual sections of the Bill first, and move to the more contentious ones next week—that is, today. His prophesy has proved correct.

The hon. Member for Reigate said that I failed to produce a convincing argument. I put it to you, Sir Nicholas, that the hon. Gentleman has failed to listen to a convincing argument. He has come here with a predetermined view, so I shall try to repeat the main points of the argument.

The hon. Gentleman said that either he had and the other place had misunderstood, or the Government had failed to put forward an argument. My contention, quite genuine and heartfelt, is that the arguments being put against our proposals are not fair because they address proposals that we have not put. They are based on a misunderstanding, as Lord West outlined in his closing remarks, in column 1111 of Hansard in the other place.

I shall dissect the main arguments. The accusation is made that we are abolishing the common travel area. The CTA is about freedom of movement for Irish nationals and British and UK citizens between those two countries and the dependencies—the islands. The CTA remains in place; that freedom of movement continues to exist. The power we are seeking from the Houses of Parliament is the power to require documentation for the purposes of proof of legitimacy of leave of entry to Ireland or the UK, in order that we can identify third-country nationals who do not have leave to remain. The power does not entitle my officials to stop a legitimate person travelling. It requires the person to produce identification; it does not give officials the power to stop that freedom of movement if the person has leave to enter the UK or the Republic of Ireland. The central principle of the CTA, which has existed since 1920, remains. That is the first point.

Secondly, the hon. Member for Reigate says that there is a gaping hole in our UK border—the land border between Northern Ireland and the Republic of Ireland. His solution to that gaping hole is to fill it with nothing, and instead to say that the problem I am trying to solve does not actually exist. It is incumbent on me to show that it does.

Thirdly, the hon. Gentleman says that the solution to the problem is to work with the Republic of Ireland to ensure that the external border of the CTA is protected by the electronic borders system. Yet his party opposes that system—it is okay to have it in the Republic of Ireland, but not to have it in the United Kingdom.

Damian Green (Conservative, Ashford)

That is one of the many things the Minister misquotes. He ignores the fact that his Government removed controls between Britain and other EU countries in 1998. He also wilfully misstates the position when he says that we oppose the e-borders system. We oppose the fact that it is being implemented in the most intrusive way possible on innocent British tourists, but we do not oppose the principle of checking people in and out.

Phil Woolas (Labour, Oldham East and Saddleworth)

Once again, we see the Conservative party trying to reconcile its authoritarian instinct with its liberal appeal. The hon. Gentleman said, although he was not prepared to put it in these words, that he supports the electronic borders system. He then went on to say that he opposes intrusion on the innocent. How am I to identify the innocent? How am I to do that in practice, without the very limited pieces of information that he calls on the Republic of Ireland to have, but not the citizens of the United Kingdom? In attempting to square the circle, the Conservative policy has become preposterous. The hon. Gentleman requires the protection of the United Kingdom border to be incumbent on an electronic borders system that contains information on individuals travelling to the Republic of Ireland, when he is not prepared to have that system for our own country. I cannot go to Parliament with that proposition. It is not feasible.

Further, the hon. Member for Reigate says that the proposal failed to be justified in the other place. He misses out a central fact that Lord West put on the record in summing up that debate, and which I used in my opening remarks. That fact has been completely ignored in the speeches opposing the proposals. I suspect that Members wrote those speeches before they had heard the argument, which is that what we propose for our side of the common travel area has been in place in the Republic of Ireland for 10 years. Lord West stated:

“The Republic of Ireland introduced border controls in 1997 so that third country nationals travelling from within the common travel area”—

the United Kingdom—

“to the republic, by air or sea, must present a passport or ID card.”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1111.]

That measure has existed in the Republic of Ireland for third country nationals for 10 years. The hon. Member for Rochdale says, “Oh, I like to travel to Ireland”, and whips up the sentiment that somehow the proposals will affect cultural and economic links between the Republic of Ireland and the United Kingdom; they will not. The Republic has been using those provisions for 10 years. The hon. Gentleman calls for the protection of the United Kingdom borders to be given over to the Republic of Ireland, but will not allow me to do what the Republic of Ireland has been doing within the common travel area since 1997.

Paul Rowen (Liberal Democrat, Rochdale)

I understand the Minister’s point, but will he also confirm that the Irish Government do not require British citizens to present a British passport when they enter Ireland? That is where the big difference lies.

Phil Woolas (Labour, Oldham East and Saddleworth)

The requirement is that British citizens must prove that they are British. That is usually done with a passport, but other documents are accepted, and that is what I propose. The fact that the hon. Gentleman does not notice anything as he moves in and out of the Republic of Ireland shows that my proposals would not cause the practical disruption to the travelling public that other people fear. In the real world, the carriers—the airlines and the sea routes—want to have passports or another form of ID, precisely so that people cannot bulk-buy cheap tickets and flog them down the pub. That is what happens in the real world.

Paul Rowen (Liberal Democrat, Rochdale)

I understand the Minister’s point, but is that situation not already covered by the Police and Justice Act 2006, which requires the carrier to provide the information, without the extra cost of between £2.5 million and £4.5 million that you propose?

Nicholas Winterton (Conservative, Macclesfield)

Order. The Minister is proposing that, not me.

Phil Woolas (Labour, Oldham East and Saddleworth)

I suspect that you would agree with me, Sir Nicholas.

I was interested in the hon. Gentleman’s point about the read-across. Let us be clear, we are talking about immigration. I will come to my hon. Friend the Member for Blaydon in a moment, as I wish to agree strongly with what he has said.

At present, if the Northern Ireland police force, the UK Border Agency, the Garda, the French and the south American authorities have knowledge of a route that has opened up into the UK through the Republic of Ireland, we do not have the power under immigration law to stop at our border a third-country national who has come into the Republic of Ireland illegally. That means that we have to take that burden, even when we know or have strong reason to believe that the person is acting illegally under immigration law. We would have to watch them. The hon. Member for Ashford looks puzzled, but it goes on every week of the year. At the moment, if we are aware of some operation going on across the land border, we do not have the power to stop people at the border, although we do in other areas, as he said.

My hon. Friend the Member for Blaydon is right. When the Home Affairs Committee looked at gasoline smuggling, it called for powers to stop people at the border based on specific intelligence-led operations. That is exactly the point that I am making in relation to immigration, but of course sentiment is being whipped up.

Mr. Andersonrose—

Nicholas Winterton (Conservative, Macclesfield)

Order. Before the hon. Member for Blaydon intervenes, I feel that I must put on the record that, whatever personal views I hold, in the Chair I am scrupulously impartial and will always be so.

David Anderson (Labour, Blaydon)

I want to confirm what the Minister said with regard to travelling not just to the Republic of Ireland, where people have to travel with a passport. When we were travelling from Newcastle to Belfast, we were advised to take our passports with us, even though Northern Ireland is within the United Kingdom.

I am glad that the Minister reminded me about the Home Affairs Committee. During our discussions in the Northern Ireland Affairs Committee about the size of the problems across the border faced by the Serious Organised Crime Agency, a suggestion was advanced by Northern Ireland Members that we bring the rate of corporation tax in Northern Ireland down to that in the Republic. That was supported by Conservative members of the Committee, which shows how big the issue is.

Phil Woolas (Labour, Oldham East and Saddleworth)

My hon. Friend makes an important point and brings pragmatic experience to bear.

I shall turn quickly to the various examples I was asked about. This is not some academic debate. We have not put up some patsy because we want to have a controversial debate; it is an attempt to strengthen our border.

I must be fair to Committee members. A number of questions were asked, so I shall try to answer them. It is already an offence under the 1971 Act to refuse to provide documents without reasonable excuse. We have made it clear that we will not require documents on the land border or from Crown dependencies, so there would be reasonable excuse in such cases.

The hon. Member for Reigate asked about the progress made with Jersey. We have ongoing discussions on the memorandum of understanding with the other islands. There was a meeting yesterday. We are inviting Jersey to take part in those discussions, so that the memorandum of understanding on the practices and practical arrangements can be agreed, and we hope that Jersey responds, but the hon. Gentleman makes a fair point about the current position.

A point was made about people trafficking. There are a number of instances when, with the limited powers we have already, we have apprehended people, which backs up the points I am making. I will give Committee members some intelligence and information. To refer to a question put earlier, there are approximately 15.4 million passenger movements between the Republic of Ireland and the United Kingdom and the Crown dependencies by air and sea. I acknowledge that it is a huge issue.

On the exploitation of illegal immigration, we have been carrying out pilot studies on the powers. Just to give Committee members some snapshots, in one week in January 2007, 158 offenders who did not qualify for entry to the UK were identified at Belfast, Londonderry, Dublin, Holyhead, Liverpool airport and Rosslare port. The north-west port team refused eight passengers further leave to enter on one day, in the operation we conducted in Holyhead in April 2009. Those are examples of the daily bread and butter work of the UKBA, in identifying third party nationals who are abusing that route.

A number of assurances have been sought about the application of equal rights, about discrimination and so on. Of course, we are committed to the application of equal rights and we are banned by law from discriminating. That approach is adopted across the ports and airports of the UK and indeed across our juxtaposed controls in France and Belgium.

I think I have answered the questions about the Crown dependencies in relation to Jersey. We are seeking to get memorandums of understanding. Of course, our main concern is the Republic of Ireland, and I hope that I have put forward convincing arguments that the CTA is being maintained. I believe that the strength of feeling on the issue reflects a misunderstanding and that is the point that the change to the CTA is addressing. The change is not addressing the right of movement of people with legitimate right to be in the Republic of Ireland or the UK, but of third-country non-EEA nationals who do not have that right.

Our contention, as Lord West outlined in the other place, is that there is a loophole in our border controls. There is a suggestion that we should rely exclusively on co-operation with the Republic of Ireland, but if I were to suggest that in relation to, say, France, a country with which we also have good relationships, I suspect that I would not remain the Minister for Borders and Immigration much longer. I certainly will not do so for much longer if I do not draw my remarks to a conclusion, because the Government Whip, my hon. Friend to my right, is urging me to allow the Committee to make its decision.

I have put my argument, I have answered the questions and I hope that the Committee supports me.

Clause 52

Damian Green (Conservative, Ashford)

I beg to move amendment 57, in clause 52, page 43, line 28, at beginning insert

‘where leave is granted for the purpose of studies in the United Kingdom,’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following:

Amendment 58, in clause 52, page 43, line 29, at end insert—

‘(ib) a condition restricting his studies to an education institution registered as a sponsor of non-EU nationals.

(1A) An educational institution registered as a sponsor of non-EU nationals must be defined as a University, Institute, Royal College or College under the Company and Business Names Regulations 1981 (S.I. 1981/1685).’.

New clause 10—Restriction on studies: further definition

‘(1) The Company and Business Names Regulations 1981 (S.I. 1981/1685) are amended by inserting “College” in column (1) of the Schedule.

(2) Section 2(1)(b) of the Business Names Act 1985 (c.7) does not apply to the carrying on of the business under a name which includes the word “college” by a person—

(a) to whom the business is transferred on or after the date on which section 52 came into force; and

(b) who carries on the business under the name which was its lawful business name and immediately before that transfer,

during the twelve months beginning with the date of the transfer.

(3) Section 2(1)(b) of the Business Names Act 1985 (c.7) shall not apply to the carrying on of the business under a name which includes a word “college” by a person who—

(a) carried on that business immediately before the date on which section 52 came into force; and

(b) continues to carry it on under the name which immediately before that date was its lawful name.’.

Damian Green (Conservative, Ashford)

These are fast-moving times and later in my remarks I shall come to what the new Further Education Minister said to the Select Committee on Home Affairs this morning, as I have been apprised of that. I am delighted that the Government are thinking along the same lines as one of our amendments—as they should be, of course, with all our amendments. The issue of student visas is clearly hugely important, as the Minister has acknowledged. There have been several scandals in recent years. In a sense it is hardly surprising.

There are two amendments and a new clause in the group, and I shall divide the group in two: amendment 57 deals with one issue, and amendment 58 and new clause 10 deal with another. However, they have a common background, which is worth setting out, as it concerns numbers, and the sheer scale of potential abuse of the system.

Between 2004 and 2008 nearly 825,000 student visas were issued, and in 2007 alone 358,000 non-EEA students were admitted to the UK. That is an increase of 16 per cent. on the previous year. Student cases were the largest group of after-entry visa decisions in 2007, accounting for 37 per cent. of the total number of about 145,000 people. In that context it is interesting to see what percentage were successful, and the answer for 2006 was 66 per cent. of applicants for student visas. An estimate from Universities UK—the Minister may have better figures at his disposal—is that 25 per cent. of appeals against the initial decision are successful. That suggests that there are significant problems in the entry clearance system.

I do not think that there will be any division in the Committee about the idea that we are all supportive of foreign students; certainly UK universities are, not least because of the revenue that those students bring, but we are also supportive of them as a country. Conservative MPs often make the point that one purpose—perhaps the main one—of the immigration system should be to enable Britain to attract its fair share, or perhaps more than its fair share, of the brightest and best from around the world, to support and promote our economic growth.

Clearly, the universities play an extremely large part in that, by introducing some of the brightest students from around the world to this country, a proportion of whom will inevitably want to make their life here. Even without that longer-term advantage, the Home Office estimates that in 2007 international students contributed £8.5 billion to the UK economy each year. That is a very positive background against which the many serious problems that emerge need to be addressed.

The Minister has described the student visa system as the Achilles heel of the immigration system. [Interruption.] He says that he was talking about the old system. He is in the throes of introducing a new one, which may or may not improve it, but he and I would certainly agree that the system that he describes as the old one—which is of course the one he and his predecessors have operated for the past 12 years—is the Achilles heel of the immigration system.

Nicholas Winterton (Conservative, Macclesfield)

Order. Before I adjourn the Committee until four o’clock this afternoon, I congratulate hon. Members on the quality of the debate on clause 51. It was very interesting to be in the Chair.

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are discussing the following: Amendment 58, in clause 52, page 43, line 29, at end insert—

‘(ib) a condition restricting his studies to an education institution registered as a sponsor of non-EU nationals.

(1A) An educational institution registered as a sponsor of non-EU nationals must be defined as a University, Institute, Royal College or College under the Company and Business Names Regulations 1981 (S.I. 1981/1685).’.

New clause 10—Restriction on studies: further definition—

‘(1) The Company and Business Names Regulations 1981 (S.I. 1981/1685) are amended by inserting “College” in column (1) of the Schedule.

(2) Section 2(1)(b) of the Business Names Act 1985 (c.7) does not apply to the carrying on of the business under a name which includes the word “college” by a person—

(a) to whom the business is transferred on or after the date on which section 52 came into force; and

(b) who carries on the business under the name which was its lawful business name and immediately before that transfer,

during the twelve months beginning with the date of the transfer.

(3) Section 2(1)(b) of the Business Names Act 1985 (c.7) shall not apply to the carrying on of the business under a name which includes a word “college” by a person who—

(a) carried on that business immediately before the date on which section 52 came into force; and

(b) continues to carry it on under the name which immediately before that date was its lawful name.’.

Damian Green (Conservative, Ashford)

It is a delight to see you occupying the Chair, Mr. Gale, albeit temporarily. I was at the beginning of my remarks on this group. The break was fortuitous, as it allowed me to look at more details of what the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs said in the Home Affairs Committee this morning, which is directly pertinent to the new clause.

The Committee will remember that I was setting out the background as to why the issue is so important. Not only Opposition parties but many bodies, including the Home Affairs Committee and the security services, have been warning the Government about abuses of the student visa system for immigration purposes for some years. The Minister for Borders and Immigration said this morning that he rather agreed that the old system was deeply imperfect, but that there was now a new system that made things much better.

This morning, the Minister of State at the Department for Business, Innovation and Skills—or DBIS, if that is what we call it now—said that his understanding was that the register was already in place and that the IT systems should be up and running by the end of the year. That does not sound completely like a system in full flow. If the hope is that the IT system will be working by the end of the year, there is clearly some way to go before the new system is properly up and running. There is a long-running problem that we have all known about. There has been inactivity on the part of the Government in cracking down quickly enough on bogus colleges.

The scale of the problem is enormous. One of the witnesses to a recent Home Affairs Committee inquiry estimated that there could be tens of thousands of bogus students across the country. I would be interested to know what the Government’s estimate is. Even more frightening is that the British high commission in Pakistan estimates that half of all students to whom it grants visas disappear after reaching the UK. Does the Minister recognise that terrifying figure? We have no estimate of the number of foreign nationals on student visas who have worked more than the permitted 20 hours during term time in the past 12 months.

We have failed to find out from the Home Secretary how many student visas were revoked in each of the past five years as a consequence either of failure to register with the relevant institution at the beginning of the academic year or failure to attend classes. I asked that question and had one of the standard brush-offs, which cited disproportionate cost as the reason why an answer could not be given. [Interruption.] The Minister is chuntering from a sedentary position that it would cost thousands, but nevertheless, this is a serious problem, which affects the security of this country and the integrity of our immigration system. It seems—because I believe all the answers I am given by Ministers—that we do not know the scale of the problem. It is difficult to solve a problem if one has no idea of its scale. That, apparently, is the situation we are in. If the Minister wants to say that despite all that it would be too expensive—cost thousands—to have the basic information that would enable us to solve the problem, so be it, but that is an interesting insight into the running of government.

Let me move to amendment 57, the purpose of which is clear. Any condition restricting studies could be imposed only on people who had been given leave for the purpose of studying and not on anyone else with limited leave to enter or remain. I hope that the Minister welcomes the amendment. It is in line with the Government’s stated aim, which is that the clause meets the objective in the points-based system that students should be tied to the institution that sponsors their entry to and stay in the UK. If so, there is no need for the Secretary of State to take wider powers to impose restrictions on the studies of migrants who have been granted leave to enter or remain in the UK. That point arose on Second Reading.

Amendment 57 would address the underlying problem of the Government’s tendency to legislate for powers whose nature and extent is realised only much later, when further regulations or guidance are introduced. That process undermines the authority of Parliament. Given that no reason has been advanced for a power to impose conditions restricting studies other than for the stated purposes, which would remain permitted under the amendment, the clause appears to be too wide ranging.

The Minister will be aware that on Report in another place, my noble Friend Lady Hanham tabled an amendment that would have achieved much the same thing as my amendment. She argued that the clause does not provide enough safeguards and that an appropriate balance has to be struck. Other Members of the other place pointed out the practical pitfalls. Baroness Finlay of Llandaff, who is a professor at Cardiff university, observed that the clause would pose particular difficulties for medical students at Oxford, Cambridge and St. Andrews, who often do not know where they will pursue their clinical studies, and for all medical students following a six-year course. Amendment 57 is very practical.

Given the testimony by the Further Education Minister to the Home Affairs Committee this morning, I am glad that the Government seem to agree with the intentions of amendment 58 and new clause 10. The Minister spoke about the problem of bogus colleges—people using the word “college” to set up a bogus institution. I agree that it seems strange that by law we protect the term “university”—one cannot set up an institution and call it a university in this country—but one can set up an institution and call it a college. He said that he would undertake to reconsider the matter and that there will be an opportunity to do so in the autumn. I assume that he was talking about a Bill that the Government have planned on the matter.

Although I was grateful for those comments, bogus colleges are, as I have observed already, a big problem that has been a long time in the solving. It seems possible that we could solve it in the Bill and so save ourselves time in a few months when I assume that a different Department will be seeking to solve it with another Bill in the next Session.

That is not an academic point. It was not clear from the Minister’s testimony to the Home Affairs Committee whether he intends to introduce provisions in a new Bill or add them to an existing Bill. Given the stage in the electoral cycle, if there is a new Bill, it is conceivable that it will not reach the statute book before a general election, which could result in several years’ delay before it is introduced. That is quite a serious point, which I hope that the Minister for Borders and Immigration will address.

The new clause addresses the problem with the previous registers, which have proved inadequate in controlling bogus colleges. As with other provisions in the Bill, without proper enforcement, a register is just an empty gesture. I shall quote some figures that I think are constructive. By 1 October 2008, 541 educational institutions applied for licences to sponsor college students; only 19 are universities, 169 are further education colleges and 353—the vast majority—are “other educational establishments”. The border agency has requested attendance reports from 153 colleges and 48 universities since limited mandatory reporting was introduced in April 2007, and since January 2005, 256 colleges on the register of education and training providers have been investigated by the authorities. Of those, 114 have been found to be in breach of the immigration rules and have thus been removed from the register.

That illustrates the scale of the problem and of immigration. We also know that 770 higher education institutions have registered to be tier 4 sponsors in the points-based system. That figure will include universities and other organisations such as private colleges and schools.

The amendment would ensure that only educational establishments registered with Companies House could become a sponsor for foreign students. Currently, those with the word “college” in their title may apply to be a sponsor regardless of whether they are formally recognised under business law. I hope that the Government will support the amendment, particularly given the remarks of the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs this morning.

The Minister for Borders and Immigration will know that bogus colleges have been a problem for a long time, and that the problem affects different people. Obviously, it affects individual students, but it also affects the reputation of the UK educational system around the world and of the UK immigration control system. One issue to be tackled is the fact that businesses can use the word “college” almost at will. He will know that the Association of Colleges and the Association of Scotland’s Colleges seek to prevent UK and foreign students from enrolling in bogus colleges by making it compulsory to ask the Secretary of State’s permission before using the word “college” in a business name. The Bill offers the ideal opportunity to rectify that fault, which has been recognised by everyone involved.

When drawing up the new register for education sponsors, the UK Border Agency rejected applications from more than 300 institutions, many of which were bogus colleges. The Association of Colleges says that as a condition of receiving public money, all its member colleges are subject to stringent regimes of public audit and inspection. As a result, when students attend a bona fide college, they have certain expectations. Bogus colleges prey on unsuspecting students, who are predominantly from overseas. Once they have paid their fees for what are bogus qualifications, no recourse is available to them. Many students are scared to contact the authorities for fear of deportation, because they discover that although they may be the innocent victim of a scam, that will make them vulnerable. In the end, they are in a no-win situation. Either they return to their country of origin angry at the treatment they have received in the UK or they stay here illegally. I am sure the Minister agrees that neither of those results is satisfactory.

The new clause aims simply to protect the word “college”. Any organisation that wishes to trade under any name that includes the word “college” would require the express permission of the appropriate authorising official to do so. The Minister may wish to debate whether that would fit best into the new, multi-purpose Department for Business, Innovation and Skills or within his Department, but that is a second-order issue. When I look across Government, it seems to me that everything now comes under the Department for Business, Innovation and Skills—indeed, there are people who wish that.

Phil Woolas (Labour, Oldham East and Saddleworth)

He does.

Damian Green (Conservative, Ashford)

I am sure Lord Mandelson would prefer that, but it will be interesting to hear the Minister’s views.

The Minister will be aware that the restriction on the use of names is not without precedent. Companies House has the right to refuse to register certain words within a corporation name unless permission has been obtained from the relevant authority that holds the power to authorise use of that word. The Secretary of State for Business, Innovation and Skills has to be contacted for permission to use in a company name any of 54 restricted words including “institute” and, slightly more surprisingly, “Sheffield”. The various pieces of legislation enabling that power could also ban the use of other prescribed names without the permission of the relevant body. They could include words that relate to education, including “polytechnic” and “special school”. Another bizarre example to go with Sheffield is “contact lens”, the use of which also has to be approved by the Secretary of State. It is an interesting field of legislation, but it seems slightly perverse that we have specifically legislated to protect the name “polytechnic”, because I am not aware of any academic institutions that still refer to themselves as polytechnics, as they have all changed their names, and indeed their purpose. “Polytechnic” and “special school” are protected but “college” is not.

The Minister will be aware how important it is to protect the name “university”, and in the modern world it is equally important to protect the title “college”. I think that that would be a significant step forward both for the education world and in driving out the use of education as a means of circumventing our immigration controls.

The Minister, in a sense, is pushing at an open door. I do not think there is any opposition to the proposal—the Association of Colleges wants it and the Scottish colleges want it. Clearly, he will want to improve further the controls in that area. We have seen huge dangers arise recently inside the security world, as some of the most difficult cases of which we are aware have been related to educational institutions, so it seems to me not only that that is a good idea, but that it would be a good idea if it is done immediately. Even if other parts of Government move to that at some stage in the next few months, I advise him to agree to our amendments and new clause now, or engage to come back at a later stage with something similar, because the sooner we can get on with something like that and get those protections on the statute book, the better.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

It is a pleasure to serve under your chairmanship this afternoon, Mr. Gale. I rise briefly to speak in support of the comments made by the hon. Member for Ashford on amendment 58. I am normally an assiduous attender of the Home Affairs Committee, and I see other members of that Committee here today. Unfortunately, or fortunately, the Bill has somewhat got in the way of my attendance in the past couple of weeks, but the last sitting I attended focused on bogus colleges, and it was clear that the scale of abuse is completely unacceptable. It was also clear that that abuse has been going on for many years—10 years was the figure quoted for contact with successive Ministers to try to resolve the issue. It would appear that it has not yet been resolved, and witnesses giving evidence were able to provide the Committee with many examples of so-called colleges operating above fish and chip shops or pubs and clearly providing no education. They were a conduit for getting people into the country to work illegally.

The amendment’s wording might not be exactly right for achieving what the hon. Gentleman seeks, but I support his intention to ensure that only legitimate colleges can be sponsors and that simply opening an establishment that has nothing more than a letterhead and a sign outside stating that it is a college is not acceptable. I hope that the Minister will respond positively to the proposals. He might see a way of refining the amendment to make it in order, if it is not currently in order, but I hope that he will at least accept that there is a significant problem and that the amendment is a sensible and friendly way of trying to address it.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is a pleasure to serve under your chairmanship once again in a Bill Committee, Mr. Gale—I think for the third time. I thank the hon. Member for Ashford for moving the amendment and will try to address the issues directly. We have had an introduction to the amendments, looking at the wider range of issues relating to colleges and students in the immigration system. Clause 52, and therefore the amendments to it, is restricted to a particular point, but with your agreement, Mr. Gale, I should like to address the general point first.

The hon. Member for Carshalton and Wallington, who has followed the Home Affairs Committee, to which I gave evidence on this issue, has mentioned the scale of the abuse that is going on. However, I hope he recognises that, with the introduction of tier 4 and the points-based system, particularly the requirement for people to have a sponsor licence—a student can only get a visa on the basis of an offer of a place from a specific sponsor, not on a more flexible basis, as previously—this problem in the system, which I recognise has been abused in the past, is being addressed. I prefer to debate this problem by referring to the past. Of course, there are students working their way through the system who came in under the old system, but the figures given to the Home Affairs Committee, which I will not repeat here, Mr. Gale, because you would not let me do so even if I had them at my fingertips, show that we can demonstrate that the number of institutions that are now able to bring in overseas students has fallen dramatically.

The clause supports the new system by addressing the issue of students wanting to transfer from one sponsored college, university or institution to another. Under the new system, a student cannot come into the country on a visa for study at a sponsored institution and then transfer to a non-sponsored institution, because that is not allowed. The clause states that, if a student wants to transfer to another sponsored institution, they can, but they must first seek permission. That will enable the UK Border Agency and the institution concerned to ensure that we can properly monitor whether the fact, or otherwise, regarding the purpose of the visa—that is, study—is being adhered to, because the abuse of the system in the past has been, partly, that students came in, started at college and then disappeared, and in some cases no check was made.

The amendment is in line with what the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs, my hon. Friend the Member for Cardiff, West (Kevin Brennan), has been saying this morning in the Home Affairs Committee. That sequence of events follows my appearance, and that of my colleagues at UKBA, in that Committee, where, to offer a caricature, the Chair and the Committee were supportive of the system that we have put in place but thought that the definition of a college needed looking at. Indeed, the further education colleges have been campaigning on this point—there have been articles in the specialist press about this—to try to protect the name and reputation not just of the college, but of the UK as a whole, as the hon. Member for Ashford said.

Of course, we have, through the points-based system, been able to introduce a sponsor-register system, backed up with accreditation from the approved bodies, to ensure that for immigrations purposes only the proper colleges, as they might be called colloquially, are now able to take in overseas students. Quite right too, and as some including me would say, about time too. However, the definition of a college is wider than that, as the hon. Gentleman acknowledged. Apart from the drafting points that I could mention, if Committee members wanted me to, an immigration Bill is not the place to consider that definition, although I appreciate that there is concern about this matter and I admire the ingenuity of bringing across the Company and Business Name Regulations 1981 in the amendments.

The intention behind the amendment is narrow to allow it to address the matter of transferring across, but it goes much further than that. The new clause will allow us to impose on a migrant a system in relation to his or her studies. It will operate in much the same way, with the immigration rules specifying where the restrictions will apply to other categories, so that the purpose of the visa is met. In other words, a person will not be able to transfer across from a work visa to a study, spousal or family visit visa.

A further obstacle to the amendments lies, as I mentioned, in the detail of subsection (1A), which amendment 58 suggests adding to the clause. It appears to seek to use an immigration Bill to introduce a power to make “college” a protected term under the current Company and Business Names Regulations 1981, which as the hon. Gentleman says, already protects the names “university”, “institute” and “royal”. I understand the motivation behind that and personally support it.

The new powers that the UK Border Agency has for a register of sponsors now provide a significant level of protection for institutions. They have significantly strengthened previous arrangements, by requiring all tier 4 sponsors to be independently audited, inspected and accredited by one of a limited number of approved accreditation bodies before they can qualify as sponsors. We are talking about non-EU students, if I can bring in that thorny subject. One of the issues that my hon. Friend the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs deals with is that of students from the European economic area, which he must take into account. That can include language colleges and so on, as well as other issues that we in the Home Office are particularly concerned about.

In addition, a new offence is due to come into force with the Company and Business Names (Sensitive Words and Expressions) Regulations 2009—I kid you not, Mr. Gale—which will take effect on 1 October. That is part of the tranche of regulations that, quite rightly, are part of the new regime. The new offence relates to carrying on business in the UK under a name that gives such a misleading indication of the nature of its activities that it is likely to cause harm to the public. Under that offence, the Minister of State for Business, Innovation and Skills, acronym BIS—no comment—will be able to direct an organisation to change its name. That may include removal of the term “college” if that is considered to be misleading.

In short, the purpose of protecting the name seems to make sense. My colleagues are putting forward ideas, and have given evidence to the Select Committee. A regulatory power exists there, so I do not believe that it is appropriate for the immigration Bill to undertake that change. However, I acknowledge the hon. Gentleman’s wider point.

Damian Green (Conservative, Ashford)

I thank the Minister for his explanation.

Phil Woolas (Labour, Oldham East and Saddleworth)

And the honesty.

Damian Green (Conservative, Ashford)

Always the honesty. When he responds to questions, that is always a relief. [Interruption.]

Roger Gale (Conservative, North Thanet)

Get on with it.

Damian Green (Conservative, Ashford)

I will carry on. The serious point is that the sensitive names and words order contains a test of public harm. I imagine that will have to be tested in court, and precedents will need to be set as to what constitutes public harm.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is right. To be fair to him and the Committee, my hon. Friend the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs told the Committee that he would look again at whether the term “college” should be protected, and if so, whether there ought to be a link with accreditation of some form, to ensure that the system of registration as a college is tightened up further, so that it would not rely just on that regulation. That was his commitment.

Damian Green (Conservative, Ashford)

That is very helpful. It would be a small but significant step forward. There might still be a problem, because it is clearly only after the fact of regulation. If someone sets up a bogus college, over time people will realise that it is a bogus college, so it might be possible to close it down—if it passes the public harm test, or whatever has to be done—but nevertheless it seems likely that in the intervening period, if it has taken on students, either it has been used to evade immigration regulations or it is being used to take fees off people, with all the consequent damage to the educational reputation of this country and, indeed, the reputation of and confidence in the immigration system that we have all talked about. As explained by the Minister, I am not sure whether the regulations will do what is required.

Phil Woolas (Labour, Oldham East and Saddleworth)

Just to re-emphasise, it could not happen for an immigrant student now, because of our system. My hon. Friend the Minister for Further Education, Skills, Apprenticeships and Consumer Affairs is looking at the regulation that the hon. Gentleman referred to and at accreditation as well, to meet the point made by the hon. Gentleman.

Damian Green (Conservative, Ashford)

I am delighted. I look forward to seeing it in Hansard that the Minister is claiming that that could not happen to an immigrant student. We cannot have any bogus colleges taking in immigrant students—that is what he has just said. I am not sure that he wants that read into the record.

Phil Woolas (Labour, Oldham East and Saddleworth)

Not bogus college—bogus students.

Damian Green (Conservative, Ashford)

No bogus colleges at all is quite a strong claim that the Minister is trying to make. In the spirit of good will, we shall take him at his word. We accept that the Minister has assured us that there will be no more bogus colleges and that there will be no more students being scammed by those bogus colleges or using them for purposes of illegal immigration. We can return to the subject in the months to come, to see whether that promise has been fulfilled. In that spirit, I beg to ask leave to withdraw the amendment.

Clause 53

Phil Woolas (Labour, Oldham East and Saddleworth)

Clause 53 is a minor amendment to the UK Border Agency’s existing powers to take fingerprints, to ensure that the agency can take fingerprints of all foreign criminals subject to the automatic deportation provisions in the UK Borders Act 2007 at the earliest possible opportunity. The House and the country want us to deport foreign national prisoners in an efficient and effective system. We seek the power to ensure that we have the fingerprints at the earliest possible opportunity.

Clause 54

Damian Green (Conservative, Ashford)

I beg to move amendment 59, in clause 54, page 44, line 18, leave out ‘thinks’ and insert ‘has reasonable suspicion.’.

It is with some trepidation that I ever step into the potential quagmire of the relationship of legislation to Scotland, which is always particularly sensitive in front of hon. Members from Scottish constituencies. However, there is and has always been a difficulty with immigration legislation and Scotland since the devolution settlement, the requirements of Sewel and so on.

Those of us who are veterans of the 2007 Bill will remember that there were problems at the time, because the Government could not persuade the then Scottish Executive to do what they wanted, which was particularly ironic because in those days the Scottish Executive was run by the Labour party. I remember asking at the time what would happen if things were like this then—what would happen if perchance Scotland ever found itself with an Administration run by another party, as we now have. I assume that is why we have what is being firmly written into UK-wide, non-devolved legislation—to ensure that we do not have such problems.

The specific issue addressed by our amendment, which simply removes “thinks” and inserts “has reasonable suspicion”, is to probe what the Minister means. “Thinks” seems to be a word that is not particularly suited for legislation. It would appear to allow an immigration officer incredibly wide powers if he “thinks” something about an individual. The phrase “has reasonable suspicion” would not only have more legal force but would be somewhat more precise. Frankly, it would also be less likely to give rise to future challenges under various provisions in human rights legislation. Whatever we write into the Bill, the Minister will be aware that it can be challenged under various other Acts that Parliament has passed, notably the Human Rights Act. Simply allowing an immigration officer to “think” something about an individual when it is not clear that they would have a “reasonable suspicion” that that person was subject to a warrant for arrest, which is what the clause says at the moment, is problematic. The definition just seems to be rather wide and rather woolly. I could be disabused of that view by the Minister, but I would like some sort of explanation as to why there is this particular wording in the clause.

Phil Woolas (Labour, Oldham East and Saddleworth)

I shall try to respond to the amendment that the hon. Gentleman has tabled to his satisfaction, in the hope of persuading him to withdraw the amendment.

Once again, what we are talking about here is the extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland, recognising the particular circumstances that exist there and also the relationship between the immigration official’s power to detain and the power of arrest, which is what the clause is about.

I would like to explain the clause, Mr. Gale, if that is within your strictures. It enables a designated immigration officer—earlier, we discussed how the process of designation happens—at a port in Scotland, by which we mean airports as well as seaports because “port” is a catch-all word, to detain an individual for up to three hours pending the arrival of a constable, if the immigration official thinks that the person is subject to an arrest warrant. That is an important difference, as my hon. Friend the Member for Midlothian will know.

The power, as extended to Scotland, reflects the requirements identified in Scotland, in conjunction with UKBA, and it will provide UK border force officers in Scotland, once they are trained and designated, with powers similar to those of their colleagues in the rest of the UK.

The power to detain an individual for up to three hours can be used if the immigration official thinks that that individual is liable to arrest under specified sections of the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989, or if the individual is subject to a warrant for arrest. So the answer to the hon. Gentleman’s question—essentially he asked what the difference is between “thinks” and “has reasonable suspicion”—is in relation to those PACE codes.

The powers were introduced in response to a need for powers for immigration officials to deal with those individuals, including British and EEA nationals, who are of interest to the police. So the measure is a read-across and it also has an important read-across to the debate that we will have later on police powers. Essentially the immigration official is being asked to take a judgment on whether or not he or she thinks, according to the PACE guidance, that that individual passing through the border is subject to a warrant for arrest in Scotland.

During the passage of the Bill in the other place, the noble Lords expressed concern that the new powers did not extend to Scotland. The Government therefore committed to work with the Scottish Government, the Scottish police forces and our own people in the agency to look at the issue. We are pleased that a legislative consent motion has been approved in the Scottish Parliament to extend the power. That happened because it relates to police powers, which are devolved, not immigration officials, who are of course answerable to UKBA.

David Hamilton (Labour, Midlothian)

Does the Minister accept—I made this point last week at the wrong time—that the measure requires a UK policy in legislation, and we require a UK police force. At the end of the day, we have a patchwork quilt. We have to talk to the Scottish legislators, but a UK police force would change that position.

Phil Woolas (Labour, Oldham East and Saddleworth)

We will have that debate later. The Government’s response is that the measure relates to police powers. We are trying to knit together the two so that police forces, which would not be part of the UKBA under the proposals of the hon. Member for Ashford, also have a role working with the UKBA. My hon. Friend is absolutely right that the UKBA is as it says—immigration is not a devolved matter.

On the specifics, a designated immigration officer may search a detained individual for potential weapons and anything that might be used to assist escape. If, during the course of such a search, the official finds anything that might be evidence of the commission of an offence, he or she must retain that evidence. A designated immigration officer will also be able to use reasonable force when exercising that power.

The extension of the powers to Scotland will mean that this important measure will cover the whole United Kingdom. In other words, our strategy is to bring police-like powers into the agency for a more effective partnership with the police. It is important to point out that we are talking about the power to detain, not the power to arrest.

The measure could be used for non-immigration, criminal purposes. In other words, if the immigration official suspects that someone is wanted for arrest in Scotland, or that someone is on a watch list, they can detain them and call the police, who can then decide whether to go and arrest them.

Let me turn specifically to amendment 59, which is probing. During the passage of the UK Borders Bill, the detention at ports powers generated much debate and correspondence on four issues: first, immigration officers getting police-like powers; secondly, the non-application of PACE codes of practice to the exercise of the powers; thirdly, the designation criteria and adequacy of the training, which we covered earlier; and, fourthly, the non-application of the powers to Scotland. The amendment—the hon. Member for Ashford does not claim otherwise—would have no practical effect on the threshold that designated officials apply when deciding whether the use of the detention power is appropriate. Rather, it addresses what constitutes a reason for a person to detain an individual and call the police. I am advised that it would introduce an inconsistency in the application of the power depending on whether it was being exercised in England, Wales and Northern Ireland, or in Scotland, but I concede that it would make no practical difference to the operation of the power.

The amendment would require a designated officer at a port in Scotland to have a reasonable suspicion that an individual might be the subject of an arrest warrant. Meanwhile, a similar officer in England, Wales or Northern Ireland may detain an individual if he or she simply thinks that a person might be the subject of any such warrant.

Damian Green (Conservative, Ashford)

I am puzzled by this argument. The Minister previously said that there would be no practical difference, but he now says that there is a practical difference. If the latter is true, it suggests that immigration officers in England, Wales and Northern Ireland are detaining people when they have not got even a reasonable suspicion that they have an arrest warrant against them. Is that what he is saying?

Phil Woolas (Labour, Oldham East and Saddleworth)

I am sorry, but the hon. Gentleman did not let me finish my argument. He is disagreeing with my conclusion before I have made it. I will not detain the Committee much longer, because there is no practical difference in implementation; it is simply that there would be an inconsistency in the legal regime if the amendment were agreed to.

Briefly, the amendment would require an officer in Scotland to have reasonable suspicion. Meanwhile, an officer in England, Wales or Northern Ireland, as the hon. Gentleman says, may detain an individual if he or she simply thinks that a person may be the subject of any warrant. I imagine that the intention behind the amendment is to highlight the importance of ensuring that the powers are exercised reasonably, which is to say appropriately and proportionately. I share that view, which is also the Government’s—quite right too, in my opinion.

In England, Wales or Northern Ireland, a designated immigration officer must reasonably think that the things specified in section 2 of the UK Borders Act 2007 apply before exercising the power under that section in relation to any person. That power is clear enough. The same would be true of a designated official in Scotland, in accordance with clause 54. Moreover, we have already set out clearly in standard operating procedures, which are published on the UK Border Agency website, circumstances in which it would be appropriate to exercise the power in section 2 of the 2007 Act and details of the associated safeguards and monitoring arrangements.

My argument is simply that the established practice in England, Wales and Northern Ireland, which is backed up by that standard operating procedure, is now being applied to Scotland. If the amendment were agreed to, there would be a different set of operating procedures in Scotland and a different interpretation of those procedures. Although the practical impact might not be different, that would cause inconsistency.

This is not a point of principle; it is simply a point about consistent legislation. One small aspect of the provision, for Committee members’ information, is that, in Scotland, an individual who is liable to be detained under section 2 is likely to be identified by a designated immigration officer on the basis of one or more of the following: an entry on a watch list of an individual who is subject to an arrest warrant and is detected by the immigration officer during travel document examination; an alert issued by the joint border operations centre—or e-Borders arrangements, as it were—on the basis of information received in advance of travel in respect of an individual who is subject to an arrest warrant and is detected by the immigration officer either at arrival gates or by an immigration officer during travel document examination; or on information or intelligence received, through existing channels, from another law enforcement agency about an individual who is subject to an arrest warrant and is detected by the immigration officer either at arrival gates or embarkation controls, or during travel document examination.

The clause is required to stand as it is for the consistency of policy throughout the United Kingdom. I hope that I have answered the hon. Gentleman’s question. I appreciate that it is not a hugely important point, but we like consistent legislation.

Damian Green (Conservative, Ashford)

I am grateful for the Minister’s full explanation of an amendment of one word in the clause.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is important in Scotland.

Damian Green (Conservative, Ashford)

Indeed. I take the point made by the hon. Member for Midlothian, which is that much of the complication—the patchwork quilt, as it has been described—would be solved if we had UK-wide border police with the same powers, operating methods and systems in all parts of the UK. Unless and until we face the unwelcome event of Scotland becoming an independent country, that would be the simplest and best solution.

Our debate has given a small illustration of a corner of a wider difficulty. In this instance, immigration is not a devolved power, but policing is, so those who police immigration fall through the cracks. That is why the Government had problems with the 2007 Act, and it is why we are having difficulties with this issue in the Bill. The debate has been extremely useful because it has illustrated that wider and very important problem to which we will return later in our considerations. In the meantime, I beg to ask leave to withdraw the amendment.

Clause 55

Roger Gale (Conservative, North Thanet)

With this it will be convenient to consider the following: Government amendments 33, 35 and 38.

Government new clause 4—Transfer of immigration or nationality judicial review applications.

Phil Woolas (Labour, Oldham East and Saddleworth)

The Government oppose clause 55, which has been inserted into part 4 of the Bill. It relates to the ability to transfer judicial reviews from the High Court to the upper tribunal in the unified tribunal system that has been established under the Tribunals, Courts and Enforcement Act 2007. It would prevent restrictions being placed on which appeals may be heard by the Court of Appeal. There is a pressing need to provide the administrative court, and its equivalents in the devolved areas, with greater flexibility in handling immigration judicial reviews, but our strong case is that clause 55, which is a more restrictive provision than the Government and the judiciary believe is necessary, is not sufficient to relieve the burden on the higher courts.

The clear purpose of clause 55 is to limit the class of cases that can be transferred to the upper tribunal to those cases concerned with “fresh claims” applications. It is unclear whether the intention of the clause is to require a High Court judge to consider every case individually. Neither is it clear whether the omission of Scotland and Northern Ireland is deliberate or an oversight. As my noble Friend Lord West pointed out in another place, the clause refers to applications made under rule 353 of the immigration rules. In reality, applications are refused under that rule, not made, so, in that regard, the clause does not achieve its aim.

The problems with clause 55 run deeper than those drafting difficulties. It would restrict the ability of our most senior judges to manage cases in the best interests of justice. The Government believe that we should not restrict the judiciary in that way, and that we should allow our most senior judges to exercise their constitutional responsibility, which is so clearly reflected in the 2007 Act, for the allocation of cases within courts and tribunals. It is that allocation, rather than the hearing, that is important.

In addition, the clause would prevent the Lord Chancellor from restricting the test for permission to appeal to the Court of Appeal in immigration cases. The Master of the Rolls has pointed out that the majority of those appeals raise no point of general importance, and it is therefore wholly disproportionate for there to be an automatic right for them to be substantively considered by the most senior judges who sit in the Court of Appeal.

Of course, we accept—I would argue that we know better than most—that there may be some cases that raise the real prospect that the decision of the upper tribunal will be in breach of the UK’s human rights obligations. Those are precisely the sort of cases that would meet the test that is set out in section 6 of the Act. Most importantly, it is in the best interests of justice to allow the senior judiciary, with the agreement of the Lord Chancellor, to decide which classes of judicial review cases are suitable to be heard in the upper tribunal once we reach that stage. That is a procedure that is already in operation in non-immigration jurisdictions. As the Tribunals, Courts and Enforcement Act 2007 has unified the system, other areas outside of immigration are already there. The Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland are responsible for the allocation of work between courts. That responsibility should be reflected in our Bill, too.

On 8 May, I announced the Government’s intention to transfer the asylum and immigration tribunal to the first tier and upper tribunal of the new unified system. Transferring the AIT provides an opportunity to address the significant burden on the higher courts, and we must ensure that we take full advantage of that. The best way of achieving that is to reintroduce the clause as originally drafted. New clause 4 reintroduces the original clause and I wish to argue that the clause should not stand part of the Bill, but should be replaced later on with the new clause.

Let me briefly explain what we are trying to achieve here. The fact of the matter is that the immigration system is subject to significant applications for judicial review. Last year, there were an incredible 4,454 applications for judicial review. One may say that that reflects some fault in the system—that decisions by tribunals have been wrong. However, when one considers that 85 per cent. of those applications for judicial review were not progressed and that something like 60 to 70 per cent. of the High Court work is in the area of immigration, we can see that there is a problem. In other words, our higher courts are being bunged up—let me use that phrase—with such matters.

What we are trying to achieve is a more efficient system that can speed up decisions, because it is the speed of decision in the immigration system that has caused such difficulty. We want not only to speed up but to achieve better decisions by allowing the expert tribunals to take decisions. At the same time, we do not want to restrict the ability to take principal cases to the High Court. If it is judged by the higher court to be suitable for it, it can take it as well. That is what we want to achieve in rejecting the clause as it stands. We will ask the Committee at a later stage to consider reinserting the clause as it stood.

Damian Green (Conservative, Ashford)

I wish to speak in favour of clause 55 standing part of the Bill because I believe that their lordships struck the appropriate balance. I have a scintilla of sympathy for the Minister who is trying to introduce legislation that balances the needs of justice for individual claimants and the needs of the court system. He argued the case for—as he eloquently put it—finding a way to resolve the stuffing up of the court system.

Phil Woolas (Labour, Oldham East and Saddleworth)

Bunging up.

Damian Green (Conservative, Ashford)

Sorry, bunging up, which is a legal term that I have not come across before. If one reads the long, serious and high-powered debate that took place on the matter in the Lords, greater legal brains—not mine or the Minister’s; we both have similar backgrounds and they are not legal backgrounds—have come to the conclusion that the Government have got this wrong. For that reason, this is one of the parts of the Bill which was radically changed and what is now clause 55 was introduced.

There was widespread agreement in the other place that many of the cases from the immigration and asylum courts could be transferred satisfactorily to the new upper tribunal. That would be an effective way of reducing the pressure on the administrative courts. However, there were a significant number of issues that came up during that debate, which are quite convincing and damaging to the case that the Minister has made. What clause 55 does is limit the transfer of those cases to one category that was held to be appropriate, and provides that the power in the 2007 Act to limit appeals from the upper tribunal to the Court of Appeal would not apply to asylum and immigration cases. Unlike the original clause, which the Minister is seeking to reintroduce as new clause 4, clause 55 specifies that it would not come into force until the asylum and immigration tribunal had been transferred to a unified tribunals system.

Early on in his remarks, the Minister argued that clause 55 stands in the way of the allocation of cases in the interests of justice. That is where his argument falls down because he is striking the wrong balance. The strongest objection made in the debate in the Lords to the Government’s proposals was the concern that they were trying to achieve the objective of cutting down access to the higher courts by the back door. When the Government made an attempt to do that in 2004, it was fiercely opposed, including by the Select Committee on Home Affairs. It has been mentioned by the hon. Member for Carshalton and Wallington that we have members of that committee on this one.

No one would deny that there is a real problem of overburdening the courts, or that immigration cases significantly contribute to that overburdening. Indeed, the Home Affairs Committee does not object in principle to cases which are not highly significant or complex being considered in the upper tribunal. However, it came to the right conclusion when it said that failings on the part of the Home Office must not be compensated for by a lessening of appeal rights in those complex cases which engage human rights issues or constitutional principles.

That is the nub of the argument, where the balance needs to be struck. The Minister will be aware of other groups, for example, the Immigration Law Practitioners Association. It said that it

“plainly cannot be argued that the proposal will effect some fundamental change in the nature of the tribunal hearing these appeals which will justify shutting off the constitutional right of access to the High Court and severely restricting access to the Court of Appeal.”

In summary, most of those who took part in the debate in the other place agreed that some—or even most—asylum and immigration could be transferred to the upper tribunal. There was a general view that the jurisdiction of the High Court should not be ousted altogether. A key point in that regard was made by Lady Butler-Sloss, who is a very distinguished judge. She saw the issue as

“not which court, but which judge, should deal with the case.”—[Official Report, House of Lords, 11 February 2009; Vol. 707, c. 1174.]

She also said that the judges should be carefully selected and trained. That is the point; we want the most difficult cases in front of the right judges. This is where the Government are in danger of finding themselves in an unbalanced position by creating other problems in an attempt to clear up the problem of delay. Most notably, they could find that they do not have the right cases in front of the right judges by removing the jurisdiction from the appropriate level of court. That is why their lordships had an array of amendments in front of them, including one that took a “middle way”. However, they chose the more radical amendment. My noble Friend Lord Kingsland said that he was extremely unhappy to permit any transfers of immigration or asylum judicial review cases until they had seen the effect of the transfer of the AIT to the new unified tribunal service.

Their lordships discussed this key issue of timing, but the Minister did not address this point. Many of their lordships said that Government proposals to change the system were simply premature, coming only 18 months after Parliament had decided to exclude such cases from the upper tribunal, and only three months after the tribunal had started work. That is a very valid argument; we do not yet know how this unified tribunal system is working, so it is not sensible to decide now to take such an important class of cases away from the High Court and allow them to go only as far as the upper tribunal. We should see how the system works in practice before we take that action.

Lord Thomas of Gresford, the Liberal Democrat spokesman, pointed out three big problems with the provision: an immediate risk of injustice to the litigant, a risk that inadequate handling of judicial reviews by an untested tribunal will result in an increased work load for the supervising court—the Court of Appeal—and the risk of reduced supervision at the Home Office. The latter could result in more liberties being taken, leading to more instances of injustice and, therefore, increased litigation. The root of that objection is the thought that, in attempting to clear up the court system, this will not work, and might even result in more, rather than less, litigation.

The next argument advanced, which was quite convincing, was that the horrendous delays in the immigration and asylum courts, which contribute to many of the wider problems in the immigration system, are caused not by the simple volume of cases, but by other factors, many of which are under the control of Ministers and the Home Office itself. Those factors include the poor quality of the initial decisions, the fault of the appeals structure, the fact that withdrawing appeal rights has led to more judicial review applications, the emphasis on speed rather than quality, the failure of the Home Office to comply with case management directions, and the lack of adequate provision for early legal representation.

There is some validity in each of those objections, especially the one about the poor quality of initial decisions. I am sure that those of us who deal with such matters on a daily basis hear constantly about the many cases that appear before the AIT in which no presenting officer is present, which means that the judge will inevitably hear only one side of the story. That, in itself, contributes to the less-than-optimal operation of the AIT. In seeking to solve the AIT’s problems, the Government might actually be looking in the wrong direction.

The Minister’s objective is not a bad one. He is trying to speed up the asylum and immigration courts. I do not think that anyone would object to that. [Hon. Members: “Some might.”] Yes, some might, but I can assure the Minister that neither I, nor anyone else in my party, would. However, the problem is that if he simply goes for speed, rather than speed accompanied by fairness, not only will he make the system less fair, but, in the long run, he might not even solve the problem of speed, because there will be more and more appeals. That point was made very powerfully by some very powerful legal brains in another place. For the Government simply to ignore them would be foolish and would lead the House down the wrong track.

As I say, I speak in favour of the existing clause 55, and I hope that the Minister will not press his amendments and new clause 4.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I do not propose to cover the same ground as the hon. Member for Ashford. He quoted my party’s spokesman in the other place and highlighted concerns raised there. Those concerns still apply here, at least with regard to the proposal that the Minister has put before us today. Therefore, we believe that the clause should be retained.

My hon. Friend the Member for Rochdale asked me point out that in the summary table to which the Minister referred there are no figures quoted in the section on appeals—reduced asylum and immigration cases before higher courts. That reduction is a stated benefit, but again it is unfortunately not a quantified stated benefit. In fact, in the whole of that summary table not a single benefit has been quantified. I understand that the Minister may not want to give incorrect figures, but he now seems to have lurched in completely the opposite direction and is providing us with no figures at all, which is just as unhelpful as providing incorrect figures used to be.

So I hope that the Minister will backtrack from his proposal to remove the clause. All the concerns that were expressed in the other place still exist; they have not been addressed. I hope that the clause is retained in the Bill.

Phil Woolas (Labour, Oldham East and Saddleworth)

In his absence, I congratulate the hon. Member for Rochdale on spotting that. If he can tell me how many appeals there will be in three years’ time, I will tell him what our estimate of the costs is. The situation is not as scientific as that. None the less, I take his point.

Let me try to provide some reassurances to the Committee. This is a serious debate about the structure of our legal decision-making system in the asylum and immigration processes. We have a situation that, if it is not unique, is unusual. The other place has made its view clear and the judiciary made their views clear in their response—as far as it is possible to say that there is a consensus among the judiciary and while recognising their independence—in broad support of the Government’s policies. That situation has been brought about by a very practical set of facts.

It is simply not fair to say that the fairness of the decisions is in question. I agree with the hon. Member for Ashford on his last criterion. I have some sympathy with the idea of early legal advice. Indeed, I have some sympathy with the idea of early legal representation to improve the quality of decision making. However, I cannot accept his other four or five criteria.

I do not accept that there is unfairness in a judicial review being heard in the expert upper tribunal, because the upper tribunals will consist of the expert judges. So I do not accept that that is the case. That principle was accepted for non-immigration cases in the Tribunals, Courts and Enforcement Act 2007, and there is no reason for a different point of view in immigration cases.

On the point about the decisions, as I have already said, last year we had about 4,454 applications for judicial review. A total of 85 per cent. of those applications were rejected just on the papers. That suggests that the applications for judicial review are abusive, if that is the right word, rather than that there are poor decisions. All Members of Parliament who deal with these issues will recognise the truth of what I have just said.

I am not in any sense taking away the right to apply for a judicial review. I am trying to put in place a system that deals with judicial review more effectively. Indeed, the members of the judiciary who are the most senior lawyers in this regard believe that we have got this matter right. Let me just refer to the UKBA website. We have support from the Master of the Rolls, the president of the asylum and immigration tribunal and the president of the Queen’s bench division, among other members of the judiciary, for the changes proposed in the Bill to the way in which judicial review should be considered. That follows the consultation on reform of the immigration and asylum appeals system. We have not plucked it out of thin air; we have been working on the proposals with colleagues and the judiciary for a year, and, on the whole, they have come round—I am being very careful with my words—to our point of view.

The president of the Queen’s bench division said:

“The proposals in the Consultation Paper are strongly supported. The judges of the Administrative Court, the court most directly affected, were invited to provide an input into this response. The only reaction received from them has been one of warm endorsement of the proposals. There has been no opposition to the proposals.”

The senior president of tribunals said:

“I also welcome the proposal to remove the statutory bar on the transfer of immigration judicial review cases to the Upper Tribunal.”

The upper tribunal will be well established at the point at which the proposals are implemented. He went on:

“The Lord Chief Justice and Lord President have already directed the transfer of some non-immigration related judicial review to the Upper Tribunal from its inception. The necessary legislative change should be made as soon as possible to allow transfer of immigration related cases.”

That is strong support. I recognise that the other place took a different view. There was a well-informed debate there; that is what it is for and I respect that. However, the judiciary and the UK Border Agency have to run a system, and we think that this is the best way forward.

On the accusation that the measure is an attempt to oust judicial reviews, the right of judicial review will still exist but some cases will be heard in the upper tribunal rather than in the High Court. It will be for the High Court judges, or the Lord Chief Justice with the agreement of the Lord Chancellor, to decide which cases will be heard in the upper tribunal. The measure does not take away that right. It makes the system more effective. How many cases will be transferred into the upper tribunal will be a decision for the High Court and the Lord Chief Justice. The Lord Chief Justice will be able to take into account the capacity of the upper tribunal, as well as the burden on the High Court, which at the moment we simply cannot do. It is surely not in the interests of justice that 60 to 70 per cent. of High Court decisions are on immigration.

The issue of timing is important, and I respect the hon. Gentleman’s point of view on that. He said that it was a question of balance and that we had the balance wrong. He agreed with the other place. My argument is that we have the balance right and I shall explain why. The Tribunals, Courts and Enforcement Act 2007, on which I have in part based my argument, allows most judicial review cases to be transferred to the upper tribunal, but excludes immigration cases. When that Act was passed we did not intend to transfer the AIT into the unified system, and it does not make sense for immigration judicial review cases to be heard in the upper tribunal unless immigration judges are available. In light of the burden on the higher courts and our decision to transfer the AIT, the time is right to legislate to remove that barrier. I believe that I have shown that, on the whole, the judiciary support that.

Of course, we will not commence the legislation until the specialist immigration judges are in the upper tribunal. Contrary to the argument of the hon. Member for Ashford, I believe that we have the balance right in the interests of fairness, justice and an effective immigration system. The fundamental problem with immigration decision making, which distinguishes it from most other areas of tribunal decisions, is that circumstances change for individuals as time passes. That means that a more effective system is more desirable, not just for the system as a whole but for the individual. Those are my three main arguments for rejecting the clause as it stands and proposing a new clause for a later stage.

Damian Green (Conservative, Ashford)

I want to respond briefly to the Minister’s remarks. Almost as a side issue, he is quoting from the UKBA website the remarks of senior and distinguished figures of the judiciary, but presumably they made those remarks somewhere else, so that seems slightly odd. Presumably some of them would have had the opportunity to contribute to the debate in the other place, so that is the root of where I think he has got it wrong.

The Minister rightly said that the purpose of the other place, as it currently functions, is to provide a level of dispassionate expertise that may not be available at the rough end of this place, which we occupy. He agreed with me, and indeed anyone who has read the debate in the other place would testify, that it was an extremely serious debate, conducted on both sides by people who have thought about the issues for a long time and come to some deep conclusions. He accepted all that but is inviting us to reject entirely the conclusion reached in the other place. We can all cite authorities, but ultimately, if their lordships are addressing an issue with particular expertise and come to such a convincing conclusion in a vote, we should heed them. It is not a particularly partisan issue, as we all agree that there are significant problems with the immigration courts and with delays, and I would welcome practical moves from the Government to resolve them. At the moment, however, they are looking at the wrong end of the pipe.

I am glad that the Minister agreed that one of the problems, and one which would actually make a very significant difference to the delays, is that when the legal advice is provided—[Interruption.] He says from a sedentary position that he had sympathy with the argument—I can see the subtle difference between that and actually agreeing with me. He will be aware of experiments in this country and other parts of the world showing that the early application of significant legal advice, particularly in an asylum application, can mean that in the long run it is decided more quickly and accurately. It might never get to court and certainly would not get to appeal, so the advice serves many purposes.

Simon Burns (Conservative, West Chelmsford)

Does my hon. Friend share my surprise that 85 per cent. of applications for judicial review are rejected, and does such a high proportion not make one question the quality or motivation of the legal advice being given to people seeking judicial review?

Damian Green (Conservative, Ashford)

There is some validity in my hon. Friend’s point. Indeed, I have heard that view expressed with a degree of enthusiasm by the Minister, who is not known as the biggest fan of the legal profession, particularly the part of it that deals with immigration and asylum cases. I am, as a habit, gentler on the legal profession than he is, not least because I am married to a lawyer, so perhaps for no other reason than self-preservation, that seems an appropriate course of action. Nevertheless, there is a point; we all know from our constituency cases that there might be a degree of abuse of the legal privileges afforded to those going through the immigration system, particularly the asylum system, and it would be better to stamp it out. The question is whether the clause is the best way to do that. I suspect that it is not, as it would not solve the problem that my hon. Friend and the Minister have noticed, and would give rise to the other problems that I have mentioned.

I return to the point, which is germane to my hon. Friend’s intervention too, about the stage in the process at which we should concentrate our legal advice. I seek to minimise the effect on the public purse, as would the Minister, and to maximise the speed at which people go through the system, because delay promotes both injustice and expense. As I was saying, experiments in this country, and many experiments overseas, have revealed that if someone receives decent legal advice at the start of the process, their case will not only be concluded more quickly but will be much less likely to go to appeal. If they then end up being removed from the country, they are more likely to accept the situation. The problems with delays and with many people refusing to go and causing violence on planes are driven out of the system. Sweden has a successful return rate of more than 90 per cent. We could learn from that, and in doing so we would also save public money.

The Minister disagreed with me about the timing, but he did not particularly convince me. It seems very early in the life of the new unified tribunal system to be proceeding down such a path. I note that one of the authorities he quoted is in charge of the tribunal system, but I would expect the person in charge of the tribunal system to say that it is all working marvellously. Indeed, I would be worried if they did not. Nevertheless, we should give it more time to bed down. In the end, much wise advice was given in another place about this matter, and I think that this House should listen, so the clause should stand part of the Bill.

Clause 57

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to move amendment 1, in clause 57, page 45, line 22, after ‘Kingdom’, insert

‘or the responsibility of the UK Government or UK agencies abroad’.

It is a pleasure to speak in favour of this straightforward but powerful, I hope, amendment, which touches on the welfare of children who are in contact with UKBA. We do not always have a particularly positive record that we can be proud of on children, as with the detention of families in detention centres. This small amendment would perhaps redress that balance and ensure that we gave greater priority to children and provided for the welfare of children in and outside the UK. I wrote down something that the Minister said earlier today. He said—this is a direct quote—that we are “effectively exporting our borders.” Clearly, that is what we are doing at entry clearance posts and juxtaposed controls, or perhaps in the course of an escorted removal. If we are exporting our borders with the acceptance and acknowledgment of other countries, can we not also ensure that the standards we apply to the welfare of children within the UK who are being looked after by UKBA, also apply to children from outside the UK who are in contact with UKBA?

This is a straightforward proposal, which is welcomed by the Refugee Council and others, and it is hard to see why the Government would not want to support it. Is there any reason for UKBA to have a different attitude to the welfare of a child who is being escorted outside the UK, from the approach to welfare issues that it would take for a child within the UK? It is straightforward.

In an earlier sitting we had an interesting debate about whether the Independent Police Complaints Commission should have any powers abroad. We asked whether it should be possible for someone to make a complaint about something that happened abroad, and for the IPCC to pick up and deal with it in this country. Currently it cannot, and I suppose a certain logic says that if suitable policing or reporting arrangements apply in another country, we should allow that country to deal with any complaints.

The Minister’s own words are that we are “exporting our borders”. We have a relationship with many countries which accept that officials of the United Kingdom are able to process things abroad. Of all the people that UKBA comes into contact with, we should be most careful about the welfare of children. It is clear that the very high standards—broadly speaking—that we have here, regrettably do not apply in a number of other countries. Therefore, we cannot assume that the local safeguarding children board, or whatever structures another country has in place to look after children, will be able to deal appropriately with the welfare of children, as that is simply not the case. In many countries there will be no safety net or local authority able to take on those responsibilities.

I hope the Minister will accept that this is a valid and well-meaning amendment about promoting the welfare of children—something that the Government recognise as a responsibility of UKBA within the UK. Surely, it is just a small extension to ensure that that responsibility also applies outside the UK. I hope the Minister will respond positively.

Damian Green (Conservative, Ashford)

I want to put down some caveats. I sympathise with the motives behind the amendment, but I wonder about the practicalities. Perhaps the hon. Member for Carshalton and Wallington or the Minister will pick up on some of these points. The Minister will be aware that in this country, local authorities are essentially responsible for the welfare of children who come through the immigration system. In some cases, many of those local authorities would prefer that responsibility to be taken by UKBA, as there would be funding implications to that. I wonder about the practicalities of assigning that duty of care to the UK Government in a general sense, or to UK agencies abroad. What sort of agencies are we talking about? What criteria would have to be met for the child to become the responsibility of the UK, as opposed to the responsibility of an agency in the country in which our agency is based? In principle, if a child is in his or her own country, surely the responsibility for their care must lie in that country’s jurisdiction rather than in this country.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Perhaps to put the hon. Gentleman on the spot, does he believe that that would apply in the case of an escorted removal when a child is being transported to another country on a plane? At the moment that that plane lands, does the responsibility lie with the country where the plane has landed?

Damian Green (Conservative, Ashford)

Presumably, if the child is still airside, there would be a question as to what jurisdiction they were in, but that is clearly a small example of the wider point that I assume the hon. Gentleman is making about where children come from.

Phil Woolas (Labour, Oldham East and Saddleworth)

The answer is yes.

Damian Green (Conservative, Ashford)

The Minister can give his own answer to the question if he likes.

There is a serious question about the guidelines that would need to be issued to UK staff based overseas. Essentially, all my caveats boil down to what would happen in practice. How would the measure be a practical way of enhancing children’s welfare? I take the point that the hon. Member for Carshalton and Wallington makes—we will have higher standards in this country than there are in some others—but he will recognise that if we made the amendment, extra pressure would be put on British authorities in other countries.

I approach the matter with a questioning mind. One cannot impugn the motivations behind the measure, but would it be a practical solution that could be operated in the real world?

Phil Woolas (Labour, Oldham East and Saddleworth)

I absolutely acknowledge that the intention of the proposed amendment is good. There was a significant debate in the other place regarding the duty that is being put on by the clause.

Let me remind the Committee of the primary purpose of the duty. We are attempting to ensure that UKBA has a duty that is the same as that found in section 11 of the Children Act 2004, thereby bringing the agency in line with a number of other public bodies in the UK, so that they can share information and concerns about children. The agencies that also work overseas do not have that duty placed on them overseas, partly for the reasons the hon. Member for Ashford gave. I recognise that that is not an argument in and of itself because the hon. Member for Carshalton and Wallington will say, “Well, they should have the duty as well,” which I understand.

The application of the duty that clause 57 places with regard to children overseas was also the subject of a very good quality debate in the other place. Our point of view then, as now, is that the duty is based on the systems in place in the UK and that it cannot be transplanted to other countries, which may have entirely different arrangements. Moreover, it is likely that other countries would consider it an interference in their jurisdiction if UKBA were to seek to assume the level of responsibility for local children as it would for children in the UK.

A useful test in this area of policy is to imagine the reaction of one’s constituents if things were the other way around—if an agent from another country were to take such an attitude in the UK. To reassure the hon. Member for Carshalton and Wallington, I remind him that the UK does not and cannot deport children—he referred to escorts and deportation—to countries where it is deemed unsafe to do so. We are not allowed to do that. We believe that our formal responsibilities under the duty should be confined to children who are in the United Kingdom.

I hope to reassure the hon. Member for Carshalton and Wallington, because I heard what he said about the Refugee Council. We—the taxpayer rather—fund that body to the tune of around £17 million a year to do that work. Sometimes, when I read the newspapers, perhaps I bite my tongue, but that is quite right in a democracy—the council does a great job and we work with it on the Gateway project very effectively. To reassure the hon. Gentleman, the United Nations convention on the rights of the child also limits the responsibility of states parties to children within their jurisdiction. That is something that we take seriously.

My second point is to reassure the Committee that none of that means that we do not take appropriate action to ensure that our officials overseas take appropriate action with regard to children. Indeed, the statutory guidance that accompanies the duty sets out the expectation that UKBA staff overseas will make referrals to overseas authorities where local or other international agreements permit or require. In addition, our staff going to work overseas receive training in children’s issues as part of their induction. There is much voluntary co-operation. As it stands, the practical points made by the hon. Member for Ashford are pertinent.

As the amendment stands, it would introduce an undesirable lack of clarity into the work of the agency, since it would be unclear which children and when would be the responsibility of the UK Government, when UKBA would be responsible for children outside the UK, or which UK agencies were being referred to. Take, for example, the juxtaposed controls in France, which are covered by French law, subject to treaty agreement; we believe that the best way of achieving the duty upon our staff there is through the implementation of the code of practice. If I were to go to France and tell the French that our law was to overrule their law, they would very quickly tell me where to put my juxtaposed controls—if I can put it in English and not in French.

There are some practical difficulties. Similarly, consider an overseas posting into which a child, accompanied or otherwise, may be sent to apply for a visa. Do our staff have a duty of care? There are practical arrangements that could cause difficulties.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

May I put a concrete example to the Minister? If he is able to say, “Well, this couldn’t possibly happen”, I shall at least be reassured on that point. The view put forward by the Immigration Law Practitioners’ Association is that the failure to promote the welfare of children abroad may have results as harmful to the child as any failure in respect of the child in the UK, including granting a visa enabling a child to be trafficked to or via the UK, or handing a lone child over to the authorities in another country that has not made arrangements for the child’s welfare. Is the Minister saying that those circumstances could never arise because of the safeguards that are currently in place?

Phil Woolas (Labour, Oldham East and Saddleworth)

It is a difficult point. I take that very seriously. What the hon. Gentleman is asking, in effect, is whether one of our officials could be misled or duped in some way into being party to the trafficking of a child and whether there should be an obligation set out in statute that that should not be the case. My answer would be twofold. First, if our current practices did not cover that, I think that hon. Members would want to know why. If the case was that we did not currently have procedures in place to check that, then that would be the difficulty. If a child was brought in legitimately and then abandoned, as happens from time to time, would the member of staff be subject to legal action rather than disciplinary action because he or she had been duped, and what would the consequence be?

The difficulty, therefore, is again one of practical arrangement and of intent. Also, in the situation that the hon. Gentleman described—I can think of others, such as escorting—the member of staff would have an obligation, which stems in part from that duty through the statutory code, to refer it to the relevant authority in the country in which he or she was based.

For those reasons, which I am satisfied are good ones, we do not want the amendment on the statute book, given those reassurances on the obligations that we place on staff. I think that the overwhelming argument is that conflict with the laws and practices—particularly the laws—of overseas countries would render the amendment difficult. There has been no objection, I think, to the purpose of the clause itself, so I will not speak on that point.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have listened carefully to what the Minister and the Conservative spokesman have said. Clearly, significant practical issues would arise if any attempt were made to introduce the amendment. I hope that the Minister can confirm that the scenario outlined cannot happen in practice because of the safeguards that are in place; he might be able to write to me on the subject.

I acknowledge the significant practical issues that might arise, so I beg to ask leave to withdraw the amendment.

Damian Green (Conservative, Ashford)

I beg to move amendment 60, in clause 57, page 46, line 3, at end insert—

‘(5A) The Secretary of State shall collect and publish statistics regarding detention of children during the relevant period, on a regular basis.’.

I hope that I can restore friendly relations along the Bench with the hon. Member for Carshalton and Wallington, as my amendment is identical to one tabled in another place by his noble Friend Lord Avebury and supported by my noble Friend Lady Hanham. The purpose of the amendment is to gain further assurances from the Government that they will collect and publish data relating to the detention of children under Immigration Act powers and, we hope, commit to a timetable for doing so. We have had various discussions about the amount and quality of statistical information available in the field, and I am sure that even the Minister would admit that things are not perfect, to put it no higher.

The amendment would make a small step forward in one of the most sensitive areas—the detention of children. The Minister will be aware that the Refugee Children’s Consortium, a joint body of organisations and charities that deal with children, such as Save the Children, the Refugee Council and many others, is concerned about the limited scope and poor quality of data kept by UKBA and its contractors on the children that it detains, both those detained with their parents and separated children whose age, and disputes over whose age, are essential to deciding how they are treated.

The Refugee Children’s Council contends—I have some sympathy with this contention—that without such information, it is not possible for UKBA to meet its duty under the code of practice or the new duty that we are discussing under the clause. If it does not have comprehensive and accurate information, UKBA is in no position to monitor how its policies are affecting children and any underlying trends. Similarly, the lack of information impedes the Government’s ability to comply with their reporting obligations under article 44.2 of the UN convention on the rights of the child, which requires that:

“Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.”

The collection, presentation and publication of such information is now imperative in light of the welcome recent withdrawal of the Government’s reservation on immigration and nationality matters with regard to the convention on the rights of the child.

At the moment we get a limited snapshot in the quarterly statistics, which are aggregated into the annual statistics. We get a snapshot of the children who are detained with their families. The key is that it is not possible to track cohorts or to know how many children were detained over a given period, the cumulative length or outcome of their detention, the children’s nationality or where or at what point in a child’s asylum claim they were detained. The most recent figures were published on 20 May and they demonstrate the paucity of information that is currently available to us. They show that for the first quarter of 2009, 30 people detained solely under Immigration Act powers were recorded as less than 18 years old. Twenty of them had been in detention for less than 29 days, five for between 29 days and two months, and the remaining five for between two and three months.

During her inspection of Yarl’s Wood, the chief inspector of prisons obtained more illuminating figures that seemed to justify the concerns, but she highlighted alarming inaccuracies in the data. I have personal experience of that; it has been some time since I have been inside Yarl’s Wood, but last time I was there I looked at the data collected on how many children were detained for more than 28 days. When I asked in a parliamentary question for a regularised version of the data, I was told that it was not collected, but I have seen it—I know that it is collected. I know that it is at Yarl’s Wood, so to be told that the data were not available seemed questionable.

Given the Government’s view that the detention of families with children whose asylum claims have failed and whose appeal rights have been exhausted is necessary for their removal from the UK, statistical information should be made available to allow scrutiny of the Government’s policy of detaining families. Data should show the number of families removed from the UK after their detention and the number of families temporarily released or with other outcomes after their detention. In that context, like the Minister but unlike the Refugee Children’s Consortium, I accept that in some cases detention of families with children may be necessary at the moment. Given that at present we do not have adequate alternatives to detention, I think it is important that such facilities are available. None the less, it still seems necessary that we should make available proper information about what is happening to those families, and particularly their children.

In another place it was stated that without comprehensive information it is impossible to determine whether or not the Government’s stated policy—that detention must be used sparingly and for the shortest period necessary—is being adhered to. On Third Reading in the other place, the Minister made a commitment to the House that UKBA would continue to review and update how it collates and updates its statistics and guidance. He said:

“We can do better and we are putting in a lot of effort to do better to underpin the new duty to safeguard and promote the welfare of all the children with whom UKBA comes into contact. I have asked the agency to set up a round-table discussion involving representatives of the major children’s charities”.—[Official Report, House of Lords, 22 April 2009; Vol. 709, c. 1539.]

That is clearly a step forward. We now need, and I hope to gain from the Minister today, a timetable for producing the comprehensive cohort data that we, the children’s charities, and the wider public need to assess what is happening: the total length and outcome of detention, the children’s nationality and at what point in their asylum claim they were detained. It is unacceptable that such data are not routinely gathered either by immigration removal centres, if the Minister decides that they are not—though, having seen the data, I have my doubts—or centrally by UKBA.

We also need data in one other area—the number of age-disputed young people who are held in detention and the number of disputed cases subsequently found to be children. Once again that is a central point about transparency and accountability. It is the UKBA’s policy,

“not to detain [unaccompanied] children other than in the most exceptional circumstances”.

However, UKBA says:

“Where an applicant claims to be a child but their appearance very strongly suggests that they are significantly over 18 years of age, the applicant should be treated as an adult until such time as credible documentary or other persuasive evidence such as a full ‘Merton-compliant’ age assessment by Social Services is produced which demonstrates that they are the age claimed.”

All that is fine, but we do not know how many have that test put to them nor how many are then found to be under 18. If statistics are not collected on the number of such cases, the number later found to be children and for how long they are in detention, we do not believe UKBA can itself know or be satisfactorily held to account by anyone else on the effectiveness of its policy. The central purpose of the amendment is that it would require the Secretary of State to collect and publish the data.

Not just Members on the Opposition Benches, but very many people who are concerned with the detention of children, think that without the provision of that essential statistical information it is impossible to know how effective Government policy is in this area. If it is impossible to know, suspicions will flourish. I am sure everyone is uneasy about the detention of children, possibly for long periods, and to do that under this cloak of secrecy makes it all the worse. It certainly damages the reputation of this country around the world. I hope the Minister will take the amendment very seriously.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am not easily offended, so I will be happy to support the amendment. It rightly seeks to ensure that we have much better quality data about what is happening to children within the system. It would be helpful if the statistics were to cover, for instance, escorted children abroad and that might address some of the issues I raised earlier. It would enable us to have a better picture of how those children are cared for. It is a sensible proposal, although it could have been more specific regarding the frequency of publishing the statistics—perhaps on a monthly basis—and the sort of information that it might be useful to provide in regular reports.

The hon. Member for Ashford raised an interesting point about children who are considered to look over 18 and therefore are treated as adults. I hope the betting industry is not used as an example, as 95 per cent. of the test purchases made in betting shops by a 17-year-old were successful. A much greater number of children may be falling foul of the looking-18 rule than we know about. It would be useful to have a feel for how many children are considered to look 18 when many may be much younger. I hope the Minister will be able to provide us with a positive response to a sensible proposal.

Phil Woolas (Labour, Oldham East and Saddleworth)

I have thought about the matter, and the hon. Gentlemen are right. We should publish statistics based on the average length of stay, as well as the ones we currently publish that give a snapshot. It is common sense; it is decent. I think the political criticism that we get as a Government is ridiculous. We should publish the information and I shall explain in a moment what we intend to do. In addition, publishing the statistics will provide a better explanation of policy.

On the point just made by the hon. Member for Carshalton and Wallington about children, the statistics will show that lots people aged over 18 claim to be children—I think that someone aged 31 recently tried to do so—and there is a dispute among professionals about how to ascertain a child’s age. Some of the children that I have seen in detention look pretty old and are pretty big and strong, but I make that point just to put the issue in context.

Let me give the reassurances that the Committee wants. I think that hon. Members are speaking as both constituency representatives and as spokespeople for their parties. The issue was debated in the other place where we gave some commitments, and I have of course looked at it since then. I am glad that the amendment has been tabled as it draws attention to the need for more accurate and up-to-date recording of data on the detention of children, and it also informs the debate.

Any Government must justify the detention of children, and I think that there are safeguards in the Bill. There is justification for the argument that the legal system and, sometimes, legal advice prolong the detention. We have had a debate about judicial reviews, and the detention of children at Yarl’s Wood is meant to be the final stage in the process, but sometimes delays are caused that are outside UKBA’s control. The matter is in everybody’s interest, as well as in the interest of accountability.

We share the real concern that statistics on children in detention are not currently published in a way that enables the length of detention to be clearly identified. That is what the House, the interested parties and, I think, the public are looking for. The problem has arisen because we have not been confident that the data held centrally are robust enough. The Government have an obligation to produce published official statistics, either through the Office for National Statistics or through our own Home Office statisticians, who are themselves independent from Ministers. As the Committee knows, I have sometimes found that very frustrating and I have justified my point of view to the Select Committee.

For published national statistics, there is an inescapable need to ensure that the standards set down by the UK Statistics Authority are met. The standards are rigorous, and are designed to create confidence that the information presented is accurate and objective. For example, if a family is taken to Yarl’s Wood, then taken out, and then put back in again, we have to get the statistics right, but I am not hiding behind that point, because the issue can be addressed.

The hon. Member for Ashford asked why the Yarl’s Wood data are not published. I asked the same question following my visit to Yarl’s Wood, and there is a good reason: we are now quite rightly strict about having only one case file for each case. The legacy cases that we often talk about are cases and not individuals, so a legacy case of 150,000 probably relates to around 100,000 people, even though the number of cases is 150,000, so misrepresentations can be made. In the case of Yarl’s Wood, that means that whenever anyone makes a decision involving a child they have all the previous information available to them so that the consequences of their decisions are understood.

However, I do not wish to over-egg the pudding; the Home Office statisticians have already commenced work on the project to develop statistics on children in detention, and they plan to publish additional statistical analyses on the number of children in detention—by age, gender, nationality and place of initial detention, which is something that I think the hon. Gentleman has previously raised—and the total number of children leaving detention, so that we can see the full picture. The statistics will appear in the August 2009 issue of the quarterly “Control of Immigration: Statistics” statistical bulletin, a document read more widely than its name implies.

The plans were discussed with relevant voluntary organisations on 21 May and the resulting statistics will be published, as I have said, in future statistical bulletins. The plans include expanding the details about those leaving detention, to show the time periods involved and the reason for leaving, whether that be removal to another country or another reason. I hope that I have satisfied the Committee.

David Hamilton (Labour, Midlothian)

Will my hon. Friend add to those figures the number of under-18s in the same family? That would be relevant. There are cases involving three or four people from the same family.

Phil Woolas (Labour, Oldham East and Saddleworth)

If that figure is not there, it should be. I can see exactly the point of that. If we look at the case, the children are detained because of the parent. The alternative policy, which as my hon. Friend knows we have tried elsewhere, is to separate the child from the parent, which, in practice, is normally the mother. That is equally or perhaps more undesirable, certainly from the child’s point of view. That is implicit in what I have said, and so I accept that point of view.

I will not put forward arguments about the drafting of the clause and so on. I make those commitments to the Committee and will repeat them on Report if that is desirable, and we can move on and have a proper debate.

Damian Green (Conservative, Ashford)

May I clear up what the process is? Is the Minister saying that he will table an amendment on Report that would have that effect and that he would therefore like me to withdraw the amendment?

Phil Woolas (Labour, Oldham East and Saddleworth)

I believe that the desirable way forward is for the Committee to accept my assurances that we will do that. It is not appropriate for such a specific expectation to be in the Bill. I was simply asking the hon. Gentleman to withdraw his amendment in the light of my assurances. I do not want him, other Committee members or you, Mr Gale, to think that this is just a way of getting over an awkward amendment; it is not. The amendment is not awkward, it is something that we are committed to. I commit to repeating that commitment on Report, by which time I will have further information on the publication dates and the plans.

Damian Green (Conservative, Ashford)

I am grateful for the Minister’s positive response. In a sense, there is nothing more to say. I am glad that the Government have done that. It is overdue and welcome, and we are pleased to have achieved it. I can assure the Minister that the quarterly statistics are read avidly by some of us for many days after they come out because they are full of exciting illumination. On the basis of his assurance, I beg to ask leave to withdraw the amendment.

Clause 59

Clause 60

Damian Green (Conservative, Ashford)

I beg to move amendment 61, in clause 60, page 47, line 35, at end add—

‘(12) If any part of this Act has not come into force within two years of it receiving Royal Assent the Secretary of State shall report to Parliament the reasons.’.

I do not often table amendments to a commencement clause, but I thought that it was worth doing so in this instance. I have been looking back at the record of the implementation of the multitude of immigration Bills that have been introduced. By my analysis there have been eight. The spokesman for the Liberal Democrats, the hon. Member for Eastleigh (Chris Huhne), always makes it nine; we have never quite reconciled the numbers. I think that this is the third such Bill that I have had to deal with. I am sorry to weary the House with some detail, but it is worth doing.

If one goes back to the Criminal Justice and Immigration Act 2008, sections 98 to 117, 125, 130 to 137 and 146 have not yet been commenced. One might argue that that is fair enough as that Act was only passed last year. However, going back to the UK Borders Act 2007, sections 19, 24, 32 to 38 in part and 57 have not yet been implemented. Whole shoals of the Identity Cards Act 2006, which had a significant effect on immigration, have not yet been commenced—thank God. With a following wind and a sensible new Home Secretary, they never will be.

Going back even further, section 16 of the Asylum and Immigration (Treatment of Claimants) Act 2004 has not yet been implemented. I have four lines on the sections of the Nationality, Immigration and Asylum Act 2002 that have not been introduced. I will not weary the House with details, but the second half of that Act just was not implemented at all; sections 44 to 47, 51, 53 and 124 have not yet been implemented. One can go back even further to Acts dating back to the last century and find parts that have not been implemented.

That tells us that the Government are very keen to rush in a new immigration Bill every session. However, at some stage after the House has scrutinised it but before anything happens in the real world, they decide not to implement large parts of it. So I suppose that I am seeking some assurance from the Minister that he is absolutely sure that everything that we are discussing and passing in this Bill will actually happen in the real world, because all the evidence of previous Home Office immigration Bills is that that is not the case. I want to know exactly how much time of the Committee and the House is being wasted in discussing and passing legislation that is destined never to achieve anything.

Phil Woolas (Labour, Oldham East and Saddleworth)

We have a very unusual situation whereby the Conservative spokesperson is urging the Government to implement their Bills. So I welcome his support on that.

If you will allow me, Mr. Gale, I want to reflect on the fact that, in our debate on clause 39 as was, on the transitional arrangements, if hon. Members were to get their way, the implementation date would be put back, would it not? In some cases, I was urged—not in this room, but elsewhere—to put the implementation back by several decades.

However, let me try to address the hon. Gentleman’s serious point. There was indeed a parliamentary question on this issue, which was put to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier). We commend the hon. Gentleman on his research and for making this point. As I said at the start of our consideration, I am in favour of post-legislative scrutiny; I think that the House should do that and I believe that the public would respect us more if we did look at laws after they are passed.

The answer to the hon. Gentleman’s question is that 18 of the substantive provisions of the Bill, if both Houses agree to it, will come into force by order. That includes those provisions in part 2, including earned citizenship, provisions on a common travel area, the judicial review clause and the children’s duty.

Let me reassure you, Mr. Gale, and the Committee that the Government have every intention of implementing everything in the Bill within the next two years. A total of 43 clauses, including provisions in part 1 on border functions, and clause 52 on restriction on studies, come into force immediately on Royal Assent. Part 1 is essential as it will allow for the formal transfer to UKBA of about 4,500 officers who are currently employed by HMRC, to enable the full integration of customs and immigration work at the border. All the other provisions in the Bill will begin implementation by the end of 2010.

The only exception where I cannot assure the Committee relates to clause 54, because we remain committed to consulting Scottish Ministers in advance of laying any orders and I will not prejudge those conversations by announcing the implementation date now. I take the hon. Gentleman’s point but do not think that you, Mr. Gale, would allow me to answer all the questions he asked, which are outside the scope of the amendment and the Bill. I assure him, however, that the Bill, which is small, modest and perfectly formed, will fit together like a jigsaw puzzle with the simplification Bill, which will come later.

I wish that the hon. Member for Ashford, who criticised us for bringing forward legislation to the House, would co-operate with us in getting more timetabling for immigration Bills so that we did not have to keep coming back. If we get that co-operation, he will not be able to use the amendment when we debate the simplification Bill. That apart, I hope I have convinced him that my timetable for implementation of the Bill, which is what we are discussing, is sure, on track and necessary.

Damian Green (Conservative, Ashford)

I assure the Minister with great sincerity that one thing I do not criticise the Government for is being backward in bringing forward immigration legislation. I have been making the point for some years that there is too much legislation and not enough enforcement, and too much of the legislation is defective. I adduce in evidence the fact that the Government, after passing their own legislation, clearly decide that large chunks of it are defective, because otherwise they would put it into practice. I think I have made my point and so beg to ask leave to withdraw the amendment.

Clause 61

Schedule