Clause
54Extension
of sections 1 to 4 of the UK Borders Act 2007 to
Scotland
Damian
Green: 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.
Mr.
Woolas: 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. Mr.
David Hamilton (Midlothian) (Lab): 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.
Mr.
Woolas: 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: 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? 4.45
pm
Mr.
Woolas: 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: I am grateful for the Minister’s full
explanation of an amendment of one word in the
clause.
Mr.
Woolas: It is important in
Scotland.
Damian
Green: 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. Amendment,
by leave,
withdrawn. Clause
54 ordered to stand part of the Bill.
Clause
55Fresh
claim
applications Question
proposed, That the clause stand part of the
Bill.
The
Chairman: 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.
Mr.
Woolas: 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.
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