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Baroness Williams of Crosby moved Amendment No. 53:

Leave out Clause 6.

The noble Baroness said: My Lords, at this late hour of the night I want only to speak briefly to Clause 6, and ask the noble Baroness to reply. One of the prime problems with this whole Bill--I think all of us in the House are aware of it--is that it embraces within its terms those whom the noble Baroness rightly describes as unacceptable, and indeed unforgivable, racketeers who live on the backs of people who have great needs and great worries. The racketeers exploit those people in every way and endeavour to make large sums of money out of them. Not a single Member of this House would condone those people.

On the other hand, there are people who are confused, worried and frightened and who find that only by pulling all sorts of strings and using all sorts of devices, including in some cases, bribing the police who are imprisoning them or holding them or torturing them, can they manage to escape from totally unacceptable and intolerable conditions. The difficulty all of us on both sides of the House have in dealing with this Bill is trying

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to act in such a way that we catch the racketeers without damaging seriously the interests and concerns of those whom they exploit.

The penalties in Clause 6 are among the most serious penalties that can be applied in the canon of criminal justice to any crimes that anyone commits. They are absolutely appropriate for the organised racketeers who live on the back of illegal immigration. However, they are wholly and absolutely inappropriate for the confused, troubled and sometimes brave people who try to find their way to this and other countries as asylum seekers, having in many cases put their lives or those of their families at risk. I take it the noble Baroness will say that this is a matter for the courts and that as these are maximum penalties the courts will have to decide what is the appropriate penalty. However, if there is anything the noble Baroness can say about the difference between these two groups, and the extent to which justice for one can be so meted out that it does not involve injustice to the other, I for one would very much appreciate it. I shall not press the amendment to a Division. I beg to move.

Baroness Blatch: My Lords, I must confess that this amendment has come as a bit of a surprise. Clause 6 is probably the clause which has attracted least attention during the consideration of this Bill. It is a minor technical clause which addresses an inconsistency between financial and custodial sentences available for certain offences under the Act. It does no more and no less. Currently, a magistrate can impose a sentence of six months, the longest sentence which can be handed down by a magistrate, for the offences listed in Clause 6, but he can only impose a level 4 fine up to £2,500. Level 5, that is, £5,000, is the maximum fine that can be imposed by a magistrate, and it is normal for a magistrate to be able to impose equivalent custodial and financial penalties. That is all that Clause 6 does. The amendment, if accepted, would maintain the inconsistency that currently exists, and I can see no benefit in that. I would urge the rejection of this amendment, although I understand it will not be pressed. The point that the noble Baroness makes is absolutely valid. It would have to be a matter for the courts to reflect the seriousness of the offence by imposing a fine within the range of nought to £5,000.

Baroness Williams of Crosby: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Power of arrest and search warrants]:

[Amendments Nos. 54 and 55 not moved.]

Lord McIntosh of Haringey moved Amendment No. 56:

Page 6, line 3, at beginning insert ("When a person has been lawfully arrested for an offence to which this section applies").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 57.

In Clause 7(3) we are dealing with a power of entry and search which is not concerned with entry to make an arrest--that is dealt with in earlier parts of Clause 7--but with a search for evidence. Subsection

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(3) provides that the offence to which this clause applies, which is defined in subsection (4) and is, basically, illegal entry, overstaying and the new offence of obtaining leave to enter or remain by deception, should be the basis for the entry for search purposes.

In Committee, we moved a number of much more radical amendments than this one. We were concerned, as the Minister will recall, about the definition of "serious arrestable offence"; with the equation between obtaining leave to enter or remain by deception in particular with a serious arrestable offence; and with some of the provisions relating to warrants and the ability for a constable or immigration officer to make an arrest without warrant. We are being very much more modest, as is appropriate at Report stage, with this amendment. What we are doing is looking back at what the noble and learned Lord, Lord Mackay of Drumadoon, said in Committee about,

    "the seizing of evidence which may help to establish one way or another whether a person is guilty of the offence as charged".--[Official Report, 2/5/96; col. 1782.]

We would not go so far as that. We do not think that we should wait for a charge before such a search is undertaken. But we do think that there should be an arrest first, and there should not simply be a fishing trip for evidence before an arrest has been made. After all, when a search is made in relation to a serious arrestable offence of the traditional kind, it is likely that the search will be for some essential piece of evidence, such as a murder weapon, a cache of drugs or something of that sort. We accept, at least for the purposes of this argument, that that sort of power is appropriate; and it is provided for under the Police and Criminal Evidence Act. But surely it should be applied here only where evidence is not likely to be comparable. There is no blood-stained clothing in an immigration case. It should apply only when there has been a lawful arrest--that is the wording of the amendment--and the reference to the offence should be to the offence for which the person has been arrested rather than the offence in general.

So we do not oppose the provision for the search. We are just saying that it should be confined to the cases where an arrest has taken place and should not be a fishing trip. I beg to move.

Baroness Blatch: My Lords, this pair of amendments would fundamentally alter the power provided by Clause 7(3), so much so that they are essentially wrecking amendments.

There was much criticism of this measure when we debated Clause 7 in Committee. The criticism focused on the elevated status being given to the offences set out in Clause 7. It was argued that by adopting the power to issue warrants to search for material in connection with the investigation of serious arrestable offences which is set out in Section 8 of the Police and Criminal Evidence Act 1984 for immigration offences, immigration offences are thereby placed on a par with serious arrestable offences such as murder, manslaughter and rape.

Nothing could be further from the truth. Immigration offences are not raised to the same level of seriousness as murder, manslaughter and rape as a result of the

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measure set out in Clause 7(3). Section 8 of PACE provides a power to issue warrants to search for relevant evidence, and all that Clause 7(3) does is include the offences listed in Clause 7 among the offences to which Section 8 of PACE applies. This construction is a convenient way of providing the power to search for relevant evidence which we believe to be an important part of any concerted and comprehensive package of measures to deal with those who break our immigration laws.

Clause 7(3) provides justices with a power to grant warrants to constables to enter and search premises to search for evidence relevant to the offences listed in Clause 7(4). A justice needs to be satisfied on five separate matters before he can issue a warrant.

It appears that these amendments seek to limit justices' ability to grant warrants for fear that without that limit, warrants will be handed out indiscriminately allowing constables to undertake "fishing expeditions" on the offchance that they might find something. Clearly, that will not happen, because, as I mentioned before, the justice has to be satisfied on five separate matters before granting a warrant.

One of the matters as to which the justice has to be satisfied before granting a warrant is that an offence to which Clause 7 applies has been committed. The power to search for evidence provided by Clause 7(3) is essentially an investigative aid; the justice will have to be persuaded that an offence has been committed in order to issue the warrant, but it may be essential to obtain further evidence, through the execution of the warrant, in order to secure the arrest of the immigration offenders.

These amendments would make the power to obtain warrants a purely reactive measure, providing the means to obtain further evidence only after an arrest has been made. In any cases where relevant evidence had to be obtained in order to make an arrest, and such evidence could only be secured by searching premises, it must follow that the arrest would never be made if these amendments were to be accepted.

That is why I have referred to these amendments as wrecking amendments and why I must resist them.


Lord McIntosh of Haringey: My Lords, I very much doubt whether an objective observer looking at the modest extent of these amendments and the degree to which they are less wide-ranging either than the amendments that we put forward at Committee or indeed than the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, at Committee, would concur with the Minister's view that they are wrecking amendments. She said it twice. Even after midnight that is a bit over the top.

We are dealing with a minor modification to a provision of existing legislation where it is the power of a justice to authorise entry and search of premises and the equation is being made between immigration offences and serious arrestable offences. If the Minister says that we are restricting the power of a justice to authorise warrants, so be it. That was our intention. We

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are concerned that those warrants should not be used simply as fishing trips for evidence without any serious reason for suspicion that a person is guilty.

We must always remember that warrants of this kind are intrusions of privacy, not only of people's homes but also of public places. It is undesirable to extend the powers more than is strictly necessary for the pursuit of justice, law and order in this country. I do not accept that they are wrecking amendments. I can see, if the Minister had wanted to argue it, that we should have said that there should be at least a warrant for the arrest of a named individual rather than actual arrest. Perhaps

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that is a further fall-back we will consider at the next stage. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

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