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Baroness Rawlings: Can I ask the Lord Advocate whether these powers are the same as those which exist already in a previous Act? Noble Lords who support the amendment seem to think they have changed. Do these powers apply to the two new offences already agreed?

Earl Russell: When the noble Baroness or the noble and learned Lord replies, perhaps the Committee can be assisted by some picture of where these offences come on the scale compared with some other offences? Is illegal immigration more or less serious than, say, burglary, breaking and entering, pickpocketing, shoplifting or mugging? When we know how it ranks in comparison with those offences, it may be easier for us to discuss whether or not the gravity given to it is proper.

I make one point in reply to the noble Lord, Lord Renton. Where the English common law has dealt with suspicion, it has often related to cases such as theft where it is known that an offence has been committed. The question is: who committed the offence? The difference between those cases and illegal immigration is that until one catches the person one does not even know that an offence has been committed. That makes vague suspicion a far more shotgun scatter type of approach than the more focused suspicion when one is dealing with a specific, known offence. That is a point of importance.

4.45 p.m.

Lord Menuhin: I believe that no amount of most worthy amendments can save the clause or, in fact, the Bill. The great tradition of this country has been not to cross the t's and dot the i's. But these problems are in the highest, most intense, way personal problems which have to be faced by individuals, each case being different. One cannot legislate for matters which cannot be legislated for. We live in a world of growing violence. We must be on our guard not to slip into easy formulations which suit police states rather better than this country. I believe that we should be able to trust the individual. If we can trust the Secretary of State we can trust a well founded, well grounded, well educated individual.

For my part I would rather err on the side of humanity than inhumanity. I would rather see one person saved from torture by not being sent back, and having 10 persons living where they choose to live and perhaps contributing to the community. Those are my strong convictions.

Baroness Seccombe: Does the Minister agree that the courts will decide on the importance and seriousness of the offences? Their penalty may reflect that.

The Earl of Balfour: I am intrigued that subsection (3) of Clause 7 specifically refers to the first part of

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Section 8 of the Police and Criminal Evidence Act 1984 and paragraph (1) of Article 10 of the Northern Ireland order.

The Police and Criminal Evidence Act 1984 barely applies to Scotland. Article 10 does not apply to Scotland. Between now and Report stage, will my noble and learned friend the Lord Advocate consider whether there should be specific reference in the Bill to Scottish legislation, perhaps in the criminal procedure legislation or some such measure? I am not sufficiently familiar with this part of the law to know whether or not that is necessary.

Lord Mackay of Drumadoon: I am happy to accept the invitation to re-examine the law in Scotland on this matter. I understand that there are sufficient powers to apply to the sheriff for a warrant under the criminal procedure legislation which would enable evidence to be recovered.

It is instructive to bear in mind the effect of the subsection. In moving and supporting Amendment No. 77, Members of the Committee have sought to suggest that, whether or not the Government are resorting to any reference to race, they are seeking to incorporate for all purposes offences under this Bill and the 1971 Act with other offences which meet the definition in the 1984 Act of serious arrestable offences. The general purpose of the clause is to set out, by adopting provisions in the 1984 Act and the 1989 order, a procedure for the seizure of evidence. Clause 7(2) sets out a procedure for seeking and obtaining a warrant for the purposes of searching for and arresting a person. The clause is concerned with the procedure for searching for and seizing evidence. As Members of the Committee have discussed in recent months, it is important for the police, either before or after arresting an individual, if they have reasonable grounds for suspecting that he has committed an offence, to search for evidence which can help the police and the courts to establish one way or another whether the person accused is guilty of the offence for which he has been arrested and is brought before the court. On that basis alone, the offences fall to be treated as serious arrestable offences under Section 8 of the 1984 Act. There is no intention to incorporate them for the purposes of the procedure under which such persons should be prosecuted or, more important, for the penalties which are appropriate if guilt is established.

Perhaps it would help to remind the Committee of what Section 8 provides. It sets out a procedure which enables a constable to apply to the justice of the peace. The justice of the peace must be satisfied that there are reasonable grounds for believing, first:


    "that a serious arrestable offence has been committed";
and, secondly,


    "that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence".

That bears out the point which I made that the seizure of evidence is relevant to investigating an offence and whether the arrested person is guilty of it. The section provides, thirdly, that the material is likely to be relevant

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evidence; fourthly, that it is not subject to legal privilege; and, fifthly, that one of a number of conditions applies. Those conditions are as follows:


    "that it is not practicable to communicate with any person entitled to grant entry to the premises; ... that it is practicable to communicate with a person entitled to grant entry but it is not practicable to communicate with any person entitled to grant access to the evidence; ... that entry to the premises will not be granted unless a warrant is produced; ... that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them".

That procedure was set down in 1984. The police have now had over 10 years' experience of working with it. The courts have had 10 years' experience of applying it. In my submission, it is entirely sensible for the Government to bring forward, for reasons to which I shall turn in a moment, a procedure which is well established, well practised and well understood by police officers and the court, to deal with a situation under subsection (2). That subsection deals with the application for a warrant for arrest, and subsection (3) deals with the application for a warrant to seize the evidence.

Members of the Committee have raised the question of whether the power is required or whether a similar or identical existing power is to be found in the 1971 Act. The answer is no. There is no appropriate power in England and Northern Ireland for searching for and seizing evidence relevant to the issues of whether people are guilty of offences under the 1971 Act and the additional offences which the Bill would introduce. For that reason alone the provision set out in subsection (3) is brought forward.

In seeking to enforce the existing offences, the immigration authorities have experienced difficulty through not having a power to search for evidence. It is in order to overcome that difficulty that the procedure is brought forward.

It is a matter of regret that various parties outside your Lordships' House and some Members of the Committee who have spoken have sought to suggest that the Government are treating offences under the 1971 Act as equivalent to the more serious offences of murder, rape and other crimes which are also covered by Section 8. There is no intention to do that. The intention is quite straightforward. It is to set out a laid down procedure which is already known to the police, in which they have been trained and which the courts understand. We do that in the hope that it is the best way forward rather than involving a different procedure which would give rise to confusion and misunderstanding.

From what Members of the Committee said, I know that they have concerns that individual police officers may abuse the powers. I am happy to give the Committee the assurance that the Government will keep on reminding chief constables and those responsible for training police officers of the importance of applying the law in the manner intended. They should remember the importance of discretion in exercising the powers open to police officers. I readily accept that the sensible use of discretion by police officers is a valuable aid to good race relations in the same way as the sensible use of discretion by prosecutors. Among my other duties, I have responsibility for prosecutions in Scotland.

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Discretion is an important part of the role of a prosecutor. Whether we are dealing with these statutory provisions or with prosecutions, there is no reason to believe that discretion will not be used as appropriate.

The noble Baroness, Lady Williams, mentioned the Joy Gardner case. With the greatest respect, I do not believe that it arises directly from this subsection. Undoubtedly it was a tragic incident, but the powers set out in subsection (2) would have given the power to enter the premises concerned to search for and arrest the lady. Therefore, I do not begin to understand how it provides in any sense a valid objection which would prevent Members of the Committee being persuaded that this is a sensible statutory provision to adopt.

Accusations have been made that the legislation will fuel an atmosphere of bad race relations and fly in the face of a sensible immigration policy. With respect to those who have spoken, many of whom I know feel strongly about the issues, such a problem is not in any sense a necessary consequence of passing the subsection. For those reasons, and with respect to those who have spoken, I hope that the Committee will not be persuaded that those are valid reasons for supporting the amendment.

I believe that I have dealt with most of the questions raised. I shall try to deal with those that remain. With regard to how often the power would be invoked, an issue raised by the noble Lord, Lord Avebury, it is impossible to suggest that I or any Minister would be in a position to answer that. It is a problem which the immigration authorities have faced in the past and undoubtedly the power will be used. However, when and how often it will be used is fruitless speculation at present.

Trespassing on Amendment No. 79, which has not yet been moved, there was a question as to whether it was appropriate to enforce warrants in places such as hospitals, educational establishments, youth clubs, places of worship and the like where people tend to congregate. I shall have more to say about that in due course when we reach Amendment No. 79, but it would be a great mistake to identify particular types of premises to which the law would not apply. It would encourage people to congregate there for invalid and illegal purposes. I do not understand how that would support the cause of good race relations.

So far as Australian illegal immigrants are concerned, I am happy to give the Committee an assurance that the Government would wish the immigration authorities to apply the law in so far as it relates to illegal immigration completely without any discrimination against any category of person, whether positively in that person's favour or negatively against that person. For that reason, I hope the noble Viscount, Lord Brentford, is reassured.

I believe I have dealt with all the points that I managed to note. If not, I shall no doubt be helpfully reminded by Members of the Committee.

5 p.m.

Lord McIntosh of Haringey: The Minister confirmed my interpretation of subsection (3). He confirmed that it simply adds the power of search for

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material evidence. If that is the case, surely the drafting of this clause is not only virtually incomprehensible (it took me a long time going through three different Acts to discover the meaning) but quite unnecessarily offensive.

I remind the noble and learned Lord the Lord Advocate what is meant by a "serious arrestable offence". As was said, it is treason, murder, manslaughter, rape, kidnapping and various sexual offences against children. It is also an offence that would have a consequence as specified in subsection (6) of Section 116:


    "serious harm to the security of the State or to public order ... serious interference with the administration of justice ... the death of any person ... serious injury to any person ... substantial financial gain to any person; and ... serious financial loss to any person".
Those criteria, like the crimes themselves that are listed as serious arrestable offences, are simply not appropriate to immigration law. They ought not to be in this Bill. If the noble Baroness, Lady Williams, pursues this amendment to a Division, I shall support her, and I shall undertake to introduce at the next stage a suitable amendment to subsection (2) of Clause 7 which will provide the power to search for evidence. That would be a much better way of dealing with this matter.


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