Nationality, Immigration and Asylum Bill

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The Chairman: With this it will be convenient to take Government amendment No. 255.

Ms Winterton: Clause 46 amends schedule 2(17) of the 1971 Act. It will give detainee custody officers a limited power of entry to private premises in order to search detained persons prior to escorting them to a place of detention. People who are being taken to a place of detention must be searched before they are transported, most obviously to ensure that they are not carrying weapons or other dangerous items. That is to ensure the safety and security of the escort, the public and the detained persons. The power to search detained persons is provided in paragraph 2 of schedule 13 to the 1999 Act.

At present, escorting officers cannot enter private premises other than by consent, and when consent is not given, the detained person has to be taken to the nearest police station to be searched by the escort. That causes unnecessary delay, imposes a burden on police resources, and can be needlessly distressing to detainees. The clause removes those problems by ensuring that the search can take place at the detainee's address.

Government amendments Nos. 252 and 255 are linked and merely rectify a drafting error. To be consistent with escorts' existing power to search a detained person, which is contained in paragraph 2 of

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schedule 13 to the 1999 Act, the power to enter private premises will be triggered by the detention rather than by the arrest of a person. The amendments are minor and will ensure that the trigger for the power to enter private premises is consistent with escorts' existing power to search a detained person. I hope that the Committee will accept that these are minor drafting amendments and will accept them accordingly.

Mr. Richard Allan (Sheffield, Hallam): I seek further clarification from the Minister on the difference between arrest and detention. I understand where the Government are coming from, and under later amendments we shall discuss our general concerns about escort officers carrying out that kind of work. There is a significant difference between an arrest situation and a detention situation. I understand that when an arrest occurs, a range of other safeguards kick in, in particular the codes of practice in the Police and Criminal Evidence Act 1984, which, as the Minister knows, apply not only to police officers but to immigration service officers.

We are concerned that there might be a lowering of the standards of behaviour expected from, or mandated upon, those carrying out such functions. In particular, I question whether the proposed shift from the word ''arrests'' to ''detains'' will change the distinction between arrest and detention in any way, because escorting officers will not be carrying out a formal arrest. Will that disapply procedures such as those under PACE that offer safeguards to the person who is being taken away?

Ms Winterton: No. I hope that I can give some reassurance on that subject. At the moment, if an escort accompanying an immigration or police officer has a warrant to detain a person, they cannot search that person there and then, because they do not have the power to assist in detaining somebody. The person can only be searched at a police station, because the officers would not want to carry out the search out on the street, which is what they would have to do if they did not have the consent of the person to enter the premises.

In respect of detention—which is different from arrest—we are trying to introduce a system that enables the escort to enter the premises and conduct a search there and then, rather than having to go to the police station to do that. The escort must conduct the search themselves if the detention and escort process are to be carried out in a lawful fashion. I hope that that clarifies the situation, and reassures the hon. Member for Sheffield, Hallam (Mr. Allan).

Amendment agreed to.

Mr. Allan: I beg to move amendment No. 262, in page 25, line 9, leave out 'if need be by force'.

The Chairman: With this it will convenient to consider amendment No. 236, in page 25, line 9, after 'by', insert 'reasonable'.

Mr. Allan: The amendment addresses our principal concerns about what might arise in the cases that the Government envisage wherein detainee custody officers effectively take over—or accept—a broader range of powers, which historically have largely been

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exercised by police officers and immigration service officers. Our principal concerns are about whether the standards that apply to detainee custody officers will be as high as those that apply to police and immigration service officers.

As I have said, police officers are subject to a range of procedures when they carry out forcible entries and searches of individuals. Those procedures are well established in law. Immigration service officers, through their codes of practice, have effectively taken up the PACE codes of practice. We seek assurances that codes of practice that are equivalent to those of PACE will be applied to detainee custody officers who carry out such tasks.

With regard to detainee custody officers who take an individual away, past experience suggests that it is reasonable to expect that things might occasionally go awry. What kind of complaints mechanism will be in place if and when something goes wrong? The police and immigration service have complaints mechanisms in place, but we have concerns about the accountability of anyone else who might conduct such tasks.

It is likely that the detainee custody officers will not be public employees. It is reasonable to assume that the Government intend to employ private sector firms to engage in that work—I would like to hear whether Ministers have something else in mind, or to receive confirmation that they envisage private sector security firms will carry out this work. Every individual has the right to expect both decent standards to be applied and a means of redress if they are not, but that could be far more difficult to ensure in respect of a private sector firm than in respect of the police or immigration services.

I know of complaints that have been made against court officers employed from the private sector. There is a public expectation that court officers should conform to high standards and that there should be a clear route of accountability, regardless of whether they are employed by the private or the public sector, so that blame is not placed on a private sector manager rather than the public sector authority taking the blame and accepting responsibility for investigating any problems.

We are also concerned about the extent to which forcible entries and search events can affect a wider group of people than their immediate subjects. Often, the impact will not be limited to the individual who has been taken into detention. The proposal that forcible entry can take place will affect not only the person who is liable to be detained, but other people, who might include British citizens if the place that is entered is a person's private premises and other people are present at the time.

I do not want to create too large a distinction, but British citizens have an expectation in law that protections apply. Although the Government may be able to justify the overriding necessity to remove an individual detainee, people would find it difficult to accept that at the expense of the rights and liberties of those who are present in or who own the building involved. The worst-case scenario is that of a private-

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sector organisation making a forcible entry and people who are worried and who want to raise their legitimate rights in law finding it difficult to obtain redress for what occurred. Amendment No. 262 would remove the forcible entry provision.

I hope that the Government will find amendment No. 236 more acceptable. A similar amendment was debated when the Committee on the 1999 legislation discussed similar powers for immigration officers. It gave rise to one of the rare moments of excitement in Committee when an Opposition amendment is accepted. That amendment proposed that the word ''reasonable'' should preface the word ''force'' when considering entry into premises. The then Minister, the hon. Member for North Warwickshire (Mr. O'Brien), accepted that the reasonableness test should and always would apply to any use of force.

If the Minister cannot accept amendment No. 262, I hope that she will accept amendment No. 236. The phrase ''reasonable force'' is well known in law. If we extend the power from immigration service officers to people who are more at arm's length—detainee custody officers—there are stronger grounds for including the word ''reasonable'' because that would give people security about the way in which force would be used.

I shall be interested to hear the Minister's response on those points. The matter is of considerable concern to us because of the potential for things to go wrong and the possibility of the unfortunate consequence of individuals feeling that they cannot get redress. Situations may develop that should be handled by the highly trained professional officers in the police force: although I know that the police are reluctant to carry out a large amount of immigration work because it detracts from their other duties, they are trained to deal with tense situations in which physical contact is required. People in the immigration service are similarly trained, and we do not want a diminution of the professionalism of the service that will apply to tense and difficult situations.

Mr. Malins: I rise to speak to amendment No. 236, which in fact stands in my name and those of my hon. Friends.

Mr. Allan: I apologise to the hon. Gentleman. I was confusing the amendments.

Mr. Malins: I entirely forgive the hon. Gentleman. I am pleased to have his support.

The tragic death of Joy Gardner teaches us that we should proceed with huge sensitivity in such areas. Will the Minister tell us more about detainee custody officers? I am anxious to know what training such people will have, whether they will be in uniform, the powers that they will have and whether they will be employees of private security firms. We must proceed with sensitivity if such persons may enter premises, especially if they may do so by force.

The clause does not limit the amount of force that a detainee custody officer may use. My knowledge of criminal law—you too will know this from your

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experience, Mr. Hurst—suggests that if the word ''force'' is used in statute, it is often preceded by the word ''reasonable''. It is an absolute canon of the law on self-defence that one may use force to defend oneself provided that it is reasonable. That is laid out specifically in all directions that judges give to juries.

The Minister might say that there is an inference to be drawn that the force used must be reasonable, but that is not what the Bill states. It contains no reference to the requirement to use reasonable force, even though there are many other statutory references to reasonable force. The Minister loses absolutely nothing by agreeing to my proposal to include ''reasonable''. I am certain that the briefing from her officials does not say, ''Resist at all costs.'' Indeed, it might say, ''Resist mildly to begin with, but if the argument is persuasive, accept it.'' I hope that that is what the Minister's briefing says.

We all know that the police and the immigration service are subject to certain disciplinary procedures, codes of practice and all the rest of it; that is as it should be. We want to know that the position of a detainee custody officer is similar in a world where ample protection is given to all parties concerned. The force used must be reasonable—it cannot be unreasonable—so why can the clause not say so?

5 pm

 
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