UK Borders Bill

My Lords, first, I congratulate the noble Baroness, Lady Hanham, on her tour de force today and for taking on an additional brief with such courage. I also express my thanks to her predecessor in this post, the noble Baroness, Lady Anelay, for the helpful, constructive and forensic way with which she dealt with the issues that this Bill encapsulates and many of the other issues which one might describe as coming within the criminal justice field. I have enjoyed my working relationship with her over many years—answering her questions, dealing with her points and taking on some of the issues that she has raised. I am sure that I shall enjoy working with the noble Baroness, Lady Hanham, who is a redoubtable compatriot and, occasionally, an opponent, and whose company I greatly enjoy. Having said all those very constructive things and supporting others in making their constructive observations, we should give consideration in detail to the very important amendments moved by the noble Baroness, which have been variously supported and amended in the discussion from the noble Baroness’s colleagues on the Liberal Democrat Benches. These amendments raise a very serious issue, from which no one dissents; namely, how best to protect the United Kingdom’s borders. For that reason, we believe that not only does the amendment deserve very careful consideration but also all that lies behind it deserves such consideration. I should congratulate the noble Baroness on having moved her amendment in, I think, two minutes. But, in a sense, that reflects on perhaps where we have got to in this debate. I think that the amendment deserves more time than that, certainly in the way in which I shall respond. I apologise to your Lordships' House for the length of time that it will take me to go through some of the issues which have been raised. The House will know that on 25 July my right honourable friend the Prime Minister announced the Government’s decision to integrate the work of the Border and Immigration Agency and Customs and UK Visas, and to establish a unified border force. The noble Baroness said she thought it would be a useful move, but perhaps does not go far enough. The Prime Minister recognised that other issues have to be resolved and that there may need to be further consideration on how we may integrate that work, move forward and consider other ways and agencies which might be involved in that activity. To that end, he invited the Cabinet Secretary to report on implementation and to examine the case for going further. Noble Lords have observed that in an earlier discussion on this Bill, I expressed some sympathy for the direction of travel in which these amendments take us. A key aim of the Prime Minister’s announcement was to make the controls over the movement of people to and from the United Kingdom by air, sea and rail more effective, more flexible and more visible. I am grateful for this opportunity provided by the noble Baroness to update the House on that work. The Cabinet Secretary is expected to report to the Prime Minister at the end of this month. His review team has drawn on the experience of all the key departments and senior police officers. For example, the president of ACPO, Ken Jones, is providing very valuable advice. I know that other senior police officers are similarly providing advice. Decisions on the shape and scope of the unified border force will be taken once the Cabinet Secretary’s report is completed. The future roles of the police, Her Majesty’s Revenue and Customs, the Border and Immigration Agency and other agencies and their position within the unified border force, or in relation to it, will be addressed in the report, along with any considerations about changes to legislation. Importantly, the review will focus on the benefits and costs of structural changes and the wider implication for public services. I believe therefore that it would be inappropriate to pre-empt the outcome of the Cabinet Secretary’s report by accepting the amendments on offer. I am aware that the establishment of a border police force has been a preoccupation for the opposition parties for some time. I understand that the noble Lord, Lord Stevens, is producing a review on behalf of the Conservative Party. I am sure that he, too, would confirm that this is a complex task. So in one sense I am rather surprised and a fraction disappointed that the House has been presented with what are somewhat ill-considered amendments— indeed, amendments that are exactly the same as we have seen tabled at each stage of the Bill. We as a Government have moved on with our thinking and we would invite others to do the same. Let me stress that the problems with the amendments are not just legal niceties capable of being put right by parliamentary draftsmen; they go much deeper than that. It would seem that after a couple of years of thought, some significant gaps remain in the analysis we are being invited to consider with regard to powers, composition, accountability, direction and leadership in the model on offer in these amendments. The noble Baroness, Lady Carnegy of Lour, is often wise in your Lordships’ House and she was certainly wise today when she reminded us of the complexity of the issue. Other noble Lords, with their long experience of Scottish institutions, have added to that reminder. On powers and functions of the border force proposed in the amendment, as drafted, the new force appears to have no responsibility for deportation or the operation of our offshore borders through the visa system. The amendments are silent on whether the new force will have prosecution functions. A number of the bodies from whom officers of the new body are to be drawn have prosecutorial functions. Will these remain within the existing organisations? If so, will that merely become a source of inefficiency in the new body proposed? There is nothing about how the new force would make decisions because no head or management structure is to be established. Is the new force to be a Crown body? Does it have a legal personality? Can it own property? Can it be sued? Who will decide who it can employ, the terms and conditions for its officers, what its rates of pay will be and other such matters? The amendments are silent on tax and revenue issues, and here we are seriously considering adding powers of taxation and revenue collection by secondary legislation. I would suggest that that is not an appropriate way to move forward. While of course subsection (2) of the amendment proposed by noble Lords on the Liberal Democrat Benches includes a wide power for the Secretary of State to determine additional functions by order, I think that if we were putting this forward as a model, it would be argued from the Benches opposite that it was wholly inappropriate as a mechanism to deal with such serious issues. Further, subsection (3) would provide the Secretary of State with unlimited flexibility to add new organisations and officers to the new body in a completely untrammelled fashion. Those are sweeping powers indeed. They would allow the Secretary of State to create additional functions for a law enforcement body without the full parliamentary scrutiny that is the normal course in such significant matters. I would ask the House to consider whether providing the Secretary of State with the ability to make such wide provision by secondary legislation is either right or appropriate. I also ask how the Delegated Powers and Regulatory Reform Committee of this House would react to such a proposition. On composition, while subsection (3) provides that the new body will be comprised of officers from existing bodies, who will constitute the membership of the UK border police force? There is no mechanism for actually appointing them, and no indication of who will do it or any notion of how the test for that would apply. The existing bodies will continue to exist with their current overlapping functions. No provision is made for the cross-designation of powers. Would officers of the new force continue to exercise their existing powers, and if so, where is the benefit in bringing them together? The amendments do not appear to increase the flexibility of the existing agencies to enable resources to be deployed when and where they are needed. They do not create additional powers for officers of the new border force. Again, without such provision, where is the benefit? What impact would the creation of the new force have on in-country policing in the wider communities in which ports are located? How would the relationships work, and information about the complete police intelligence picture be shared? On accountability and direction, while the amendments create a new corporate body, there is no accountable Minister, no accountability to Parliament, and no ministerial direction of the new force’s priorities. Is the suggestion that responsibility for the UK’s borders requires no ministerial oversight and no reports to Parliament? These are serious and profound questions. Each of the existing organisations has its own separate oversight arrangements. Where are the oversight arrangements for this new force? Without these, there is potential for misalignment and confusion. Who is to fund the new body? No provision is made for any kind of funding arrangement. On leadership, the amendments do not establish a head of the organisation and make no provision for funding; nor do they create planning obligations or provide for a mechanism for it to report on its progress and accomplishments. Those noble Lords who have brought forward these amendments may answer that these many defects could be addressed in secondary legislation. I go back to the argument I made earlier: we do not consider that this would be an appropriate way to deal with these matters if they were to create a new body to perform these functions. Matters of such importance should be provided for through full parliamentary debate and consideration, and amendment provided for in the form of a discrete Bill. I ask the House to compare this with the establishment of the Serious Organised Crime Agency. That required some 59 sections and two schedules in an Act which dealt with establishing the body, its functions and powers, the powers of individual officers, annual plans and reports. It provided for a description of the relationship with the Secretary of State for the Home Department and other bodies; it provided for inspection and oversight, for financial provision, for operational matters, for the use and disclosure of information and a range of other relevant operational matters. This is testimony to the complexities involved in bringing separate and already established agencies together for a particular purpose in a new organisation.