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We are reasonably happy with what the Minister has said on this amendment, although it does not go as far as we would have liked. However, we are grateful to him for his attempt to satisfy the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Lord Avebury moved Amendment No. 5:
(1) The Secretary of State shall by regulations make provision for the handling of complaints relating to, or other instances of misconduct involving, the carrying out by any person designated under section 1 of the functions for the purposes of which any power or duty is conferred or imposed by his designation.
The noble Lord said: This amendment will ensure that a proper complaints procedure is in place for those who feel that they have not been properly treated by allowing them to use the Independent Police Complaints Commission, as my noble friend Lord Dholakia said under another amendment. We would anticipate that the use of the IPCC would occur only very rarely as, if we are successful in persuading the Government to accept some amendment similar to that of the noble Baroness, Lady Anelay, on training at a later stage, immigration officers would operate to a very high standard. The Minister has assured us that that will be so.
It is important that in the event of something going wrong a person would be able to make a complaint to an independent body and that they would be confident of the procedures that that body uses to investigate the complaint and that specific action will be taken to resolve the complaint.
The Minister in another place said that following the augmented role for the IPCC in specified functions provided for in Section 41 of the Police and Justice Act 2006, a consultation was planned on what precisely the IPCC’s remit should be. I assume that that was not intended to be a formal consultation because I could not find any mention of it on the Home Office website. We would like to know how it is being conducted, and on the basis of what draft proposals. The Minister said that the consultation on precisely which immigration functions would be subject to the IPCC’s scrutiny would commence on 7 May and that he hoped that by the end of July or into the summer the consultation would be complete so that over the summer the Government could lay regulations. We would like to see the draft proposals that were tabled on 7 May to have an opportunity to comment on them during the passage of this Bill through Grand Committee or, if that is not possible, at the very latest, at Report stage so that we can have a say before the regulations are set in stone. I beg to move.
Lord Bassam of Brighton: First, may I ask a very simple question of the noble Lord? Is it his intention to refer in the amendment to the Police Reform Act 2002, rather than 2000? I think that he may have got the wrong piece of legislation.
Lord Avebury: I was quoting from what the Minister said in another place, but it is quite possible that that was wrong or that I made a slip in
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Lord Bassam of Brighton: That is helpful. It is our view that these amendments are unnecessary. We intend that the oversight arrangements to monitor the use of the powers contained in Clause 2 will be similar to those currently in existence for the similar powers of detention for immigration purposes. These arrangements cover the following: process, such as administrative arrangements for authorisations and review by senior officers; redress, such as transparent and accountable complaints procedures as communicated to passengers at ports, in our formal correspondence and contained on our website; and conditions of detention, such as oversight by an independent monitoring board, the Prisons and Probation Ombudsman and Her Majesty’s Chief Inspector of Prisons.
Section 41 of the Police and Justice Act 2006 enables the Secretary of State, by regulation, to extend the remit of the Independent Police Complaints Commission in relation to specified immigration enforcement functions, including the exercise of powers relating to detention. The scope of the IPCC’s remit will be put out to consultation and regulations defining specified functions to be covered by the IPCC will be brought forward at the close of that consultation. Regulations under Section 41 can extend only to functions of immigration officers exercised in or in relation to England and Wales. However, separate parallel arrangements are being developed for Scotland and Northern Ireland.
I am satisfied that our proposed oversight arrangements in this area are sufficient. I do not think that the proposed amendments are necessary, as they create a disproportionate regulatory burden whereby regulations can be established in other ways or when legislation is already in place. For those reasons, I hope that the noble Lord will be able to withdraw his amendment.
Lord Avebury: When the Minister said that the question of extending the IPCC’s remit would be put out to public consultation, I was not sure whether he was saying that there would be some further process in addition to the one mentioned by the Minister in another place, where it was said exactly which immigration functions would be subject to IPCC scrutiny. The consultation on that question was to be started on 7 May, whereas the noble Lord, Lord Bassam, referred to a public consultation in future, yet to be initiated. I am confused as to whether there are two processes going on regarding the IPCC’s remit or whether the consultation mentioned by the Minister in another place has been postponed from 7 May and is yet to be started. Is it possible for the Minister to clarify whether that process has been started and whether it is a formal consultation in the sense that it would take 16 weeks and be governed by the normal procedures applying to public consultations?
Lord Bassam of Brighton: I can help the noble Lord here. It was intended that the consultation should start earlier and, when the Minister in another place spoke, he referred to what he expected, quite reasonably, to
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Lord Avebury: I am most grateful to the Minister for that information. I am happy to withdraw the amendment but it was unfortunate that the consultation had to be delayed. If the timetable announced by the Minister in another place had been adhered to, we would have been in a position to comment on the draft proposals while the Bill was going through Grand Committee or, at any rate, by the time it got to Report. In the timetable announced by the noble Lord, Lord Bassam, we shall not even see the draft proposals before the Bill leaves this Chamber, so the parliamentary input to it will be non-existent. I regret that, although there is obviously nothing that we can do about it at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Tordoff): The Statement has begun on the Floor of the House, so I shall adjourn the Committee until it is completed.
[The Sitting was suspended for a Statement in the House from 5.40 to 6.22 pm.]
Lord Avebury moved Amendment No. 7:
The noble Lord said: Amendments Nos. 7 to 12 reduce the maximum term of imprisonment provided for the offences under Clause 3 from 51 weeks to six months. Amendments Nos. 45 to 48 do the same in relation to offences under Clause 21.
Clause 3(1) sets out the offences of absconding from detention under Clause 2, assaulting an immigration officer exercising a power under Clause 2 and obstructing an immigration officer in the exercise of a power under Clause 2. Clause 21 creates a new offence of assaulting an immigration officer. The Bill therefore treats immigration officers in a manner similar to police and customs officers in that they are all the subject of specific provision, in addition to the existing criminal law on assault. The Minister will no doubt explain why this is necessary when, under Section 39 of the Criminal Justice Act 1988, there is already an offence of common assault covering exactly the same conduct.
We recognise that immigration officers, in common with the police and customs officers, undertake difficult duties which can place them in physical
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Section 281 of the Criminal Justice Act 2003 allows for the penalty for summary offences to be increased from six months to 51 weeks by order. There is then a whole range of specific offences for which the existing penalties, ranging from one to three months, were replaced by 51 weeks in Schedule 26 to the 2003 Act. In response to an inquiry that I made through the Library a couple of weeks ago, the Ministry of Justice said that it had no plans to bring this section into force. It would have been helpful if the Explanatory Notes had made it clear that, as I assume must be the case, it is planned that all the summary offences in this Bill that are punishable by up to 51 weeks will come into force on the same day as Section 281. I should be grateful if the Minister would confirm that that is so.
The Magistrates’ Association tells me that Section 281 was drawn up in preparation for the introduction of custody plus under the 2003 Act, which followed the 2002 White Paper, Justice for All, and that in all criminal legislation since then, summary offences attract a maximum of 51 weeks, of which the custodial period would be up to 13 weeks and the licence period at least six months. However, as I understand it, custody plus is in cold storage and cannot possibly be implemented safely until the Probation Service has been given a breathing space following the upheavals brought about by the Offender Management Bill, and I should have thought that the provisions of that Bill would take several years to implement satisfactorily. Is it sensible to go on drafting clauses that are not likely to come into effect for such a long time, and is it the intention that immigration officers should have the powers in Clause 2 without any immediate prospect of the enforcement provisions in Clause 3?
For the time being, with all the offences in this Bill for which the penalty is 51 weeks remaining in abeyance, it would be useful if the Minister could tell the Committee whether a person who assaults an immigration officer exercising the Clause 2 powers would be charged with common assault. Can he also give the Committee details of how many offenders have been brought before the courts on charges of common assault on an immigration officer in, say, each of the past five years, so that we can see how
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Lord Hylton: It seems to me that this is yet another example of the conscious or unconscious ratcheting up of sentences and penalties. We have already seen the bad effects that that has had and now, because of the overcrowding of prisons, it has caused the Government to release prisoners in advance of the due date. On those grounds, I hope that the Minister will be able to give us a very helpful reply.
6.30 pm
Lord Bassam of Brighton: The noble Lord’s proposal to limit the maximum period of imprisonment for an offence committed under Clause 3(1) to six months may be motivated by a wide range of concerns. We heard that the noble Lord, Lord Hylton, is concerned about prison overcrowding, a subject that has caused considerable concern and debate over the past few weeks. Our decision to increase the term of imprisonment for offences punishable on summary conviction from a maximum of six months to a maximum of 51 weeks is not intended to place a further burden on our prisons as a consequence of any routine lengthening of custodial sentences handed out to those who are convicted of the relevant offences. Rather, our principal intention is to provide greater flexibility in the sentences awarded and to allow greater account to be taken of mitigating and aggravating factors when sentencing.
The increase in magistrates’ sentencing powers is also needed to enable magistrates’ courts to give custody-plus sentences, when they are implemented. I heard what the noble Lord, Lord Avebury, said on that. Ultimately, the Government’s intention is to introduce custody plus and to commence Section 281(5) of the Criminal Justice Act 2003 simultaneously at a future date. A consequence of that twinned approach is that, while the increase in sentencing powers may impact on the penalty imposed on an offender, the maximum period that an offender will spend in custody is likely to be 13 weeks, with the remainder of the sentence served on licence.
The Government’s decision to defer custody plus reflects the prioritisation of prison and probation resources towards more serious offenders. That was made clear in the criminal justice service review, published last July and, in our view, it is absolutely the right approach. Of course, we shall keep the matter of resources for the custody-plus group of offenders under review and look at what else we might do for that group in the interim.
A further reason for our decision is to establish consistency with existing offences against border agency colleagues, to which the noble Lord, Lord Avebury, understandably drew attention and with which he was in agreement. The sanctions in Clauses 3 and 21 are consistent with similar offences and
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A key aim of the border management programme is to enhance joint working between the border agencies to bring about a cohesive and integrated border security infrastructure. Creating a different regime of sanctions and penalties for immigration officers to that in place for officers of Revenue and Customs and police constables would be entirely inconsistent with that approach. Furthermore, under the border management programme, it is envisaged that one agency would provide primary capability on behalf of the other agencies at the front line. Therefore, it is vital that immigration officers are afforded the same levels of protection as officers from other border agencies. That is entirely consistent with the point made by the noble Lord, Lord Avebury, that equal protection should be available to public service workers, a point with which the Government agree and I think is quite right.
Immigration officers will be uniformed from the autumn of this year to create a more visible border control presence at UK ports. We want to ensure that we have done everything possible to minimise the risk of uniformed officers being exposed to physical assault and to ensure that immigration officers receive the same level of protection as other uniformed officers of the state. I further underline the point that we need to ensure that we enhance joint working between the various elements of the border agencies.
The noble Lord, Lord Avebury, asked for some statistics. I think he wanted to know how many offences of common assault have been prosecuted. I do not have that data with me, but I shall instruct officials to find the answer. It is a reasonable request and it will be interesting to know the size of the problem. I am sure I have covered all the points, but I am happy to provide as much data and information as background to this as I can.
Lord Avebury: Let me see whether I understood the Minister correctly. The provisions regarding the penalties for assaulting an immigration officer were designed with Section 281 in mind. They will come into effect on the same day as Section 281 and the implementation of custody plus. Section 281 is designed to come in to effect when custody plus is implemented. I do not think that he said that the same applies to the provisions in the Bill, but it was implicit in his remarks. I hope I understood him correctly.
Lord Bassam of Brighton: The noble Lord understood correctly.
Lord Avebury: I am grateful to the Minister. In that case, we face a period in which these penalties will not apply, and that period may be several years because, as the Minister acknowledged, other priorities for the Probation Service—dealing with more serious offences—have led to the indefinite postponement of custody plus so the penalties that are provided in this clause are also postponed indefinitely.
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How will assaults on immigration officers be treated in the mean time? Will they continue to be treated as common assault? If so, is there any point in having a different penalty when common assault could be assimilated to the provisions of the Criminal Justice Act 2003 by providing that the penalty, which is at present six months, should be replaced in that Act by 51 weeks which, as the Minister explained will be divided up when custody plus is initiated into a short period of custodial imprisonment followed by a longer period of probation. If the intention is to continue using common assault for the next couple of years, it is a pity that is not made plain in the Explanatory Notes. There is nothing to lead one to that conclusion in the notes. One reads the Bill, certainly these clauses, in the expectation that the 51 weeks will be coming into operation in the fairly near future. It is clear from what the Minister said that that is not so, and we have a long hiatus before the provisions in this clause or in Clause 21 are brought into effect.
It is generally unsatisfactory to provide in legislation for things that will not happen for some considerable time and that are brought into effect by an order that many never happen. Between now and the date when custody plus is implemented, there may be further thinking on how resources in the Probation Service should best be used. These provisions would never come into existence, and we would be left with the offence of common assault. I also asked the noble Lord why there are specific offences of assaulting a police officer, a customs official or an immigration officer when in all three cases the penalty is the same, and perhaps he will deal with that before we finish with this amendment.
Lord Bassam of Brighton: It is important that the penalty is the same regardless of whether the description of events varies in some regard. I think the noble Lord now understands where we are, but I shall try to clarify the position. The offence will continue until we introduce custody plus at some point in the future. We are not parking the offence so that no penalties will apply. It will carry on regardless, but at some later point we will introduce custody plus. It is sensible to do so and to ensure that it works well. I hope that clarifies things. If the noble Lord is not satisfied with that, we will come back as part of wrapping up details and with data about the number of assaults, convictions and so on. I shall elucidate further in the correspondence.
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