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Lord Cope of Berkeley: I too am grateful for the explanation of this group of amendments. Amendment No. 188 stands in my name and that of the noble Lord, Lord Alton of Liverpool. In my view--I do not attempt to speak for the noble Lord--this is a probing amendment. We do not want to prevent the Secretary of State allowing local authorities to pick up a case if that should prove necessary. However, we were anxious to find out what the Government have in mind in this respect. That has been made fairly clear. It is important to have what I think the Minister described as "seamless assistance". The amendment helps to achieve that.

Amendment No. 188A concerns inspection. I believe that it is important that this new service should be inspected, although not necessarily precisely in the way suggested in the amendment. I believe that the Minister has made favourable noises in that respect for which we are grateful.

Lord Hylton: I should like to speak to this whole group of amendments. I do so particularly to welcome the letter from the Under-Secretary of State, Mr O'Brien, to

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UNICEF which was apparently dated 15th July. The key phrase in that letter was,


    "No asylum seeker children will be removed from the provisions of the Children Act".

That is fine. I believe that it improves on another, slightly earlier letter from the Minister here to Llin Golding MP dated 30th June. In my view what we need is a clear boundary between what local authorities will be able to continue to do in this context and the work of the asylum support directorate. I do not think that we can expect that directorate to have represented within it all the skills that now exist within children's departments. Children's departments are able to take what one might describe as a very holistic approach to children's needs. That is what we want to see continued in respect of asylum-seeking children.

The Earl of Sandwich: I think that everything has been said. I shall not seek to move Amendment No 188A which stands in the name of my noble friend Lord Northbourne who, unfortunately, cannot be present and to whom we owe the original amendment. I was encouraged by the Minister's letter after we met him, and now by the confirmation that he has given.

Lord Williams of Mostyn: I believe that there are two matters that I ought to deal with in response to the noble Lord, Lord Dholakia. First, I can confirm that subsection (8) of Clause 113 simply sets limits on which authority can provide assistance in the form of accommodation and essential living needs under Section 17 of the Children Act. I am happy to repeat that the subsection does not limit the operation of that section.

Secondly, the rubric of Section 17 mentions,


    "Provision of services for children in need, their families and others".

I believe that it is inherent in that provision that, if the relevant local authority feels that it is appropriate, it will continue to be able to make available accommodation for the whole family group. I agree with the noble Lord's observation--I think we all do--that taking a child into care in any circumstance ought to be the choice of last resort.

On Question, amendment agreed to.

[Amendments Nos. 187A and 187B not moved.]

Lord Williams of Mostyn moved Amendment No. 187BA:


Page 70, line 36, after ("1989") insert ("or section 22 of the Act of 1995").

On Question, amendment agreed to.

[Amendments Nos. 187C to 188A not moved.]

Clause 113, as amended, agreed to.

Clause 114 agreed to.

[Amendment No. 188B not moved.]

Clause 115 [Secretary of State to be corporation sole for purposes of Part VI]:

Lord Cope of Berkeley moved Amendment No. 189:


Page 72, line 3, after ("State") insert ("while acting in England and Wales").

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The noble Lord said: In moving Amendment No. 189 I shall speak also to Amendment No. 190. The Committee will have noticed that the amendments stand not only in my name but also in the name of my noble and learned friend Lord Mackay of Drumadoon. The Committee may be of the impression that the amendments concern Scottish legal points, in which case the Committee is correct.

I am advised that Amendment No. 189 might be considered necessary to clarify that the provisions in the clause do not apply in Scotland--or, for that matter, Northern Ireland--where the law is rather different. The amendment seeks to make clear that a corporation sole is a characteristic of the English legal system and has no corresponding provision in the Scottish legal system.

Amendment No. 190 seeks to ensure that the provisions of the subsection extend to moveable property in addition to real or personal property. From a Scottish point of view, it was again thought that the amendment would fill a gap in the drafting of the statute. I beg to move.

Lord Williams of Mostyn: I am grateful for that explanation. In this group of amendments we find Amendments Nos. 189, 189A and 190. With regard to the Scottish and Northern Ireland question, as it were, which the noble Lord raised, we have given a great deal of thought to the matter. As the noble Lord indicated, the amendment would have the effect of disapplying for Northern Ireland the concept of the Secretary of State as a corporation sole. I did not assume that that is what it was seeking. In the context of the Northern Ireland jurisdiction the concept has application and meaning. For that reason alone I would invite the noble Lord in due time not to press the amendment.

I understood from the noble Lord that he was raising the fundamental question of the concept of the corporation sole in Scotland. He is quite right, Scottish law does not have such a concept but its rules of private international law recognise bodies which are corporations sole under the law of another country. I think that is the answer to that conundrum. That is what Clause 115(1) does for England, Wales and Northern Ireland; it creates the Secretary of State a corporation sole for those countries. The purpose is to give continuity to the exercise of his functions under Part VI for holding property and making contracts. It is not needed for Scotland, and Clause 115(1) as framed does not have the effect of introducing the concept into Scotland.

There have been precedents. For example, the Data Protection Registrar, whose functions extend throughout the United Kingdom, was created a corporation sole in Schedule 2 to the Data Protection Act 1984, and her successor, in the form of the Data Protection Commissioner, continues as a corporation sole under Schedule 5 of the Data Protection Act 1988. The Secretary of State for Employment, who has jurisdiction throughout Great Britain, is a corporation sole under Schedule 5 to the Employment Act 1989. I do not think there have been any explanations, but that is the reason for it.

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Amendment No. 189A speaks for itself. It seeks to insert:


    "property, real or personal, heritable or moveable".

I think the amendment is wide enough to cover everything the noble Lord, Lord Cope, wished to cover with Amendment No. 190 and probably goes a little further. As we have gone further than he asked, I would ask him not to press that amendment either.

Lord Cope of Berkeley: That sounded a most reasonable explanation. I shall ensure that it is considered by those who know more than I do about these matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Gardner of Parkes): In calling Amendment No. 189A, I should inform the Committee that if the amendment is agreed to I cannot call Amendment No. 190.

Lord Williams of Mostyn moved Amendment No. 189A:


Page 72, line 5, leave out ("real or personal property") and insert ("property, real or personal, heritable or moveable,").

On Question, amendment agreed to.

[Amendment No. 190 not moved.]

Clause 115, as amended, agreed to.

Clauses 116 to 118 agreed to.

6.45 p.m.

Baroness Williams of Crosby moved Amendment No. 190XA:


Before Clause 119, insert the following new clause--

CODES OF PRACTICE

(" .--(1) The Secretary of State for the Home Department shall issue a codes of practice in connection with the exercise by immigration officers, or any other persons, of the powers contained in this Part of this Act to--
(a) search for and arrest persons, enter and search premises and search persons held in detention;
(b) seize and retain material found on persons or premises;
(c) fingerprint.
(2) Any person exercising powers under this Part of this Act shall be bound by a disciplinary code, which shall be attached to the said codes.
(3) A failure on the part of an immigration officer or other said person to abide by any of the provisions of the codes shall raise a presumption against the admissibility of any evidence obtained in exercise of the powers contained in this Part of this Act in any hearing before a court or tribunal.
(4) A failure to abide by the procedures contained within the codes shall also lead to disciplinary charges being laid against the immigration officer or other person concerned.").

The noble Baroness said: In moving Amendment No. 190XA I shall, following the lead of the Government Front Bench, pre-empt Amendment No. 195C, and my noble friend Lord Dholakia will speak to Amendment No. 190YA. He has quite wide experience of the Police Complaints Authority, with which the amendment has certain parallels.

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This is an important group of amendments which concern the issue of the code of practice for immigration officers and the system for dealing with complaints about their behaviour. The amendments deal with major powers. The powers are so major that they have been of considerable concern to civil liberties organisations in this country because they are so far-reaching.

Perhaps I should briefly mention the kinds of powers that immigration officers are to be given. Clause 122 concerns their right to enter and search premises in relation to immigration offences; they will have the right to fingerprint individuals; they will have the right to seize documentation and, in some instances, to insist upon the provision of personal data. They are very sweeping powers. Unlike the powers in the Police and Criminal Evidence Act, they are not restricted to investigating serious crime. The powers take in a wide range of offences, some of which are difficult to describe as major offences.

Understandably, we are concerned that there should be a proper framework, including a code of practice and a complaints system. We recognise two factors in that regard. First, it is vital that there is confidence in the operation of immigration officials; that people not only in our own community but those in the immigrant and asylum seeker communities will broadly recognise that immigration officials are attempting to do their job fairly, decently and as well as they possibly can. We recognise that those who work for the Home Office as immigration officials will welcome the protection that a code of practice will give them, in much the same way as the police have done under the Police and Criminal Evidence Act. Obviously, primary legislation cannot lay down the detail of the powers and rights that an immigration officer has in pursuing his duties.

Secondly, we think that any code of practice should be related back to a disciplinary code--again as it is in the Police and Criminal Evidence Act--so that if an immigration officer's behaviour is not in line with the code of practice it will lead to the instigation of disciplinary procedures. In very serious instances it could lead to a police investigation, but we are not currently dealing with that matter.

So far as concerns the whole area of a code of practice, there will be particular difficulties with regard to the communities with which immigration officers will have to deal. We have talked at length in Committee about the fact that such communities are in many ways more difficult and more fraught with suspicions and fears than the communities with which the police normally deal. There are also additional factors of lack of understanding of the language; cultural differences; and mental illness, of which there is a higher incidence among refugees and asylum seekers than in the population of the United Kingdom as a whole. Not least, it is worth referring to the genuine fear that many asylum seekers feel when faced with someone who appears to be an agent of the state--because their own experience of agents of the state was often one of extreme concern and extreme apprehension.

So the various duties that fall to the immigration officer as a result of the Bill are extremely complex,

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extremely difficult and require great sensitivity. That is why we believe that Amendments Nos. 190XA and 190YA are of crucial importance.

I turn to why we believe that Amendment No. 190XA provides a much better basis for a code of practice and a related disciplinary code than Amendment No. 195C tabled by the Government. First, we believe that the link that Amendment No. 195C indicates between any code of practice for immigration officers and the code of practice that relates to the Police and Criminal Evidence Act is, to say the least, troubling. I have already explained one of the reasons for that--the different communities with which both sets of officers deal--but I add to that that Amendment No. 195C suggests, under subsection (3):


    "Any specified provision of a code may have effect for the purposes of this section subject to such modifications as may be specified".

The code concerned under subsection (3) appears to encompass the Police and Criminal Evidence Act codes. The modifications will be such as the Secretary of State determines and the word "specified" appears to relate to his directions. I believe that that means, if I have read and understood the wording of Amendment No. 195C correctly, that we shall be dealing with the PACE codes--the Police and Criminal Evidence Act codes--modified by what one can describe only as relatively sweeping powers by the Home Secretary.

We have already said that we do not believe that those codes are appropriate to the different communities with which immigration officers have to deal. I add to that our concern that under subsection (3) there appear to be wide powers, without any specific indication as to what those powers are, to make modifications. We ask the Minister to say more about how those modifications may be put before an affirmative procedure of Parliament.

Secondly, we are concerned that the powers given to immigration officers under Clause 132 also allow the finger-printing of individuals who have not--I repeat, who have not--committed any criminal offence. By itself that concerns us on the grounds of civil liberties, but if the provision is to be retained, in our view there must at least be specific reference in the codes to it. Those references would be different from the references in the PACE codes on finger-printing, which are more limited.

Thirdly, there are likely to be many women and children caught within the area of immigration offences or in the families of those involved in immigration offences. Therefore, again that community will demand much more sensitivity than in the case of the PACE codes, although those are certainly important.

Lastly, the broad Civil Service disciplinary code does not deal with the relations between civil servants--in this case immigration officers--and the people with whom they shall deal outside the Civil Service. The helpful information provided in another place included an extract from the Home Office staff handbook at paragraph 17.2. That was provided in a letter to Mr John Maxton, Member of Parliament, by the Parliamentary

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Under-Secretary of State in another place. Paragraph 17.2, described as,


    "Behaviour likely to attract disciplinary action",

refers to such matters as poor timekeeping, breaches of staff rules, being unfit for duty through drunkenness, and rather strikingly, false statements in expense claims. However, I see no reference to any behaviour likely to attract disciplinary action that relates to the treatment of people with whom the officer concerned has to deal.

On those grounds, we feel that neither the PACE codes nor the disciplinary procedures so far laid down meet the special and sensitive needs of the immigration community. We do not believe that they meet the particular problems that arise from the sweeping powers concerned with people who have committed no criminal offences at all, and we do not believe that they deal adequately with a community comprising many women and children who may be the subject of the attention of immigration officers.

Therefore, in moving the amendment, we ask whether the Minister can address the questions of the distinction between the two codes and the distinction between the two sets of disciplinary systems. I also ask the Minister to consider the remarks that will be made, complementary to mine, by my noble colleague with regard to the complaints procedures. I beg to move.


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