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Lord Falconer of Thoroton: Clause 136 provides for an immigration officer to use reasonable force if necessary in exercising the new powers of arrest, search and seizure conferred on him by this Bill or under the Immigration Act 1971. The police have specific powers in this regard under Section 117 of the Police and
I entirely share the concerns expressed by the noble Earl, Lord Russell, the noble Baroness, Lady Williams of Crosby, and the right reverend Prelate. In a sense the stark way in which they have spoken is in my view completely misconceived and completely to one side of the purposes of these powers. Amendment No. 195D would restrict the use of reasonable force to the new powers under Part VII of the Bill. That would be impractical as there are other powers contained in the 1971 Act which may require immigration officers to use reasonable force, for example, when escorting a person from A to B. It is probably already the law that if an immigration officer escorts someone from A to B, and the immigration officer needs to use force for self defence, or because he apprehends the commission of a crime or a breach of the peace, he will in any event be able to use reasonable force if necessary. It seems eminently sensible that this necessary power should be made explicit in the Bill so that there can be no doubt about it.
It is no more than that. It would not have, as noble Lords have said, a potentially detrimental effect on race relations. I appreciate that the way the powers are used is obviously significant, but simply to make explicit that which is probably already implicit is not objectionable. It must be remembered that it is only reasonable force that is at issue, and only where it is necessary. Often no force at all will be what is reasonable and appropriate. However, there may be situations which demand some reasonable force. Clause 136 makes that clear and permissible.
The noble Baroness, Lady Williams of Crosby, said, "Please make explicit on the face of the Bill what I say in the Chamber". I am saying no more than that which is already on the face of the Bill. The Bill makes it clear, in relation to both this provision and provisions about searching the mouths of detainees, to which we referred earlier, that such a search can take place only where necessary. Reasonable force can be used only when reasonably required. That is all I am saying. It is right that that is on the face of the Bill, and it is. If the point made by the noble Baroness is that I used the words "absolutely necessary" rather than "necessary", perhaps I may point out that in legal terms there is not much difference.
Baroness Williams of Crosby: I thank the Minister for giving way. I recognise that he is being helpful. I was quite explicit and pointed out that he may feel that limiting the amendment to Part VII alone would not deal with some other provisions where he would regard reasonable force as being necessary. I said that if he felt that there were other specific provisions that he wanted to list, that would be more acceptable to us than a totally sweeping power that covers everything in both pieces of legislation--one Act, one Bill.
However, I also said--this is the crucial point--that my understanding is that in this Bill there is absolutely no requirement either that the person against whom reasonable force is used has to have committed an immigration offence or that there is reason to believe that he has committed an immigration offence. That is the difference between this provision and Section 117 of the Police and Criminal Evidence Act which clearly states that reasonable force can be used only where an offence has been, or is reasonably believed to have been, committed. I may be wrong, but if I am correct, the first gives a much wider power to use reasonable force against anybody who is an immigrant or an asylum seeker than does the second. That worries us because it appears to set up almost, in a sense, an a priori friction with the immigration service along the precise lines pointed out by the noble Earl, Lord Russell.
Lord Falconer of Thoroton: The position is that the only circumstances in which force can be used is where it is reasonable (that is the force) and where it is necessary. That is the position in any event for any police officer conducting his ordinary business as a policeman. Indeed, it is the same for all of us. A police officer, for example, may use reasonable force where it is necessary in self-defence. He may use reasonable force where it is necessary to prevent an actual or apprehended crime. This Bill gives no greater power than that.
As I said in my introductory remarks, it is probably the case that an ordinary citizen has those powers in any event. All we are doing here is making explicit that which is already implicit in the law. My concern about the way the argument has been put against me is that it has been suggested that this represents a change; it does not. It only makes explicit that which is already implicit.
The best example of that is the one I gave a moment ago. If an immigration officer is escorting somebody from A to B and that person seeks to escape, attacks somebody, or makes the immigration officer feel threatened with violence, it would plainly be justifiable for the immigration officer to use reasonable force as far as necessary. All that is happening here is that that has been made explicit on the face of the Bill. I fully share a desire not to do anything that will make race relations worse. I do not believe that this provision has the ramifications which noble Lords state.
Baroness Williams of Crosby: My noble friend Lord Dholakia pointed out a very recent case where quite unreasonable force was used. It is that kind of thing which makes us want a more explicit commitment to the constraints on reasonable force. We do not want to bore the Committee, but we have examples of precisely where force has got completely out of control. We want to ensure that that never happens again.
Lord Falconer of Thoroton: We are both saying the same test: reasonable force, if necessary. That must be the test in every case. One cannot prescribe what will be reasonable force and necessity in every case. What we are saying in the Bill is that when an immigration
Lord Phillips of Sudbury: Is the Minister saying that this creates no new right on the part of the officers concerned, but is merely making explicit what is already implicit in the law? Is that correct?
Lord Falconer of Thoroton: The position surely is that the law, when it confers upon somebody a power to do something, will normally explicitly--and if not explicitly, implicitly--give that person power to use reasonable force where necessary, but only when lawfully exercising the power given to him in order to effect that particular power. That is all we are doing here. I make that clear again. The noble Lord, Lord Phillips, has got it absolutely right. It is not appropriate to prescribe it any more. The difficulty will come in the actual implementation, but that is there already. Before immigration officers get into situations in which this power might have to be used, they will be trained. They will be trained by the Metropolitan Police in how to use reasonable force, what is reasonable force and what constitutes necessity. I think that we are all, as it were, singing to the same hymn sheet. This is again one of those legal points, rather than a point of substance between us.
Amendment No. 195E would restrict immigration officers to using reasonable force only if the individual concerned was over 16. Again, that would be impractical. There may be circumstances in which it would be difficult to determine the applicant's age and true identity, which could lead to dispute. There may also be certain circumstances in which a juvenile presents just as much danger to himself or harm to the public as an adult. It is therefore not appropriate to distinguish between certain age groups, although I fully recognise the need for children to be treated with appropriate care and sensitivity. What is reasonable force in the case of an adult obviously may not be reasonable in the case of a person under 16.
I am sure it will be agreed that it is far more important for immigration officers to be given a proper, explicit legal framework in which to operate. Equally, it is accepted that any force used needs to be commensurate with the power being exercised. Any force used must be no more than is needed to achieve the lawful purpose. The Committee will be reassured that immigration officers exercising the new powers will, as I said, be given proper training in the concept of reasonable force and its practical consequences. For the reasons given, I cannot support the amendments, but I very much hope that I have set minds at rest.
Earl Russell: The noble and learned Lord has gone a very long way to set our minds at rest. He is probably right that we are singing from the same hymn sheet, but I do not think we have quite all the words in both our copies.
I take the point of the noble and learned Lord about reasonable force, but as I understand it reasonable force usually relates to the extent of the force rather than its object. It is the restriction of the object that is really interesting. I accept what the noble and learned Lord says about "when necessary." The question which probably still divides us is whether the opinion of the officer that force is necessary is subject to any outside check. I happened to be reading last week the current issue of Community Care, dealing with violence against the social worker. The publication interviewed a psychiatrist, who commented that most violence is experienced by the perpetrator as self-defence. I am sure that officers--immigration officers, police officers and others--are no exception to that rule. Things sometimes appear to a person to be necessary when that necessity may not be totally apparent to some outside and impartial party.
The other point is that here we have powers being transferred from the police to immigration officers. Powers which are already recognised in law and established may change their character by being imported into an altogether different and more volatile situation. I wonder whether there is a little more scope for thinking about the matter. I would be glad to think that there was.
It is the culmination of three things that leave us still deeply disturbed by the Government's decision not to accept this amendment. They are, first, the use of reasonable force combined with the Government's current view--they may change it--that they do not want to see an independent immigration complaints board. That means that, unlike the police, there is no further supervision of an independent kind accountable directly to Parliament and not simply to the Home Office. That means therefore that there is no clear route to having a case reconsidered by an immigration officer, vis a vis his treatment of the phrase, "the use of reasonable force" in the way that that exists in the case of the police.
Secondly, the Minister talked eloquently about training. But my noble friend made the point that provision for training within the Explanatory Memorandum on the financial cost of this Bill explicitly says that the amount to be spent on training on Part VII--that is to say, search and seizure--amounts to £200,000 a year for each of five years. I do not know how many people that would train, but I suspect it would be very few. That again worries us. What is to happen if insufficiently trained immigration officers use "reasonable force" in a wide range of situations which will involve them in much of their work in ways which turn out to be injurious for the person concerned?
Thirdly (I have to reiterate) there have been instances--we have already heard two examples given by my noble friends--where the use of force involved catastrophic consequences for the person concerned.