Borders, Citizenship and Immigration Bill [HL]

Clause 1 already expressly limits the general customs function that the Secretary of State may exercise concurrently with the commissioners to those contained in enactments, instruments or documents passed, made or issued, as the case may be, before the end of the parliamentary Session in which this Bill is passed. The insertion of the word ““only””, as suggested by Amendment 4, is therefore unnecessary. However, Clause 2 allows provisions to be made by order for functions conferred on the commissioners in enactments passed or made after the end of the Session in which this Bill is passed to be exercisable concurrently by the Secretary of State. This provides the necessary flexibility to respond to future changes in the commissioners’ functions and to allow the Secretary of State to exercise those functions when it is appropriate that she should do so. The order-making power in Clause 2, subject as it is to the affirmative resolution procedure, provides the appropriate level of parliamentary scrutiny for the making of any such provision. Various non-customs and revenue functions are given to the commissioners by various enactments: the Postal Services Act, the Proceeds of Crime Act 2002, the Public Health (Control of Disease) Act 1984, the Merchant Shipping Act 1995, and so on. It is likely that future Acts may do likewise and may give functions to the commissioners, the Secretary of State or both. However, it is also sensible to retain some flexibility to allocate functions by order, in view of the new arrangements at the border and the likely need for HMRC and the UK Border Agency to have a role in enforcement of future matters. The noble Lord, Lord Brooke, is absolutely correct in his interpretation of what he read. I am not altogether clear what Amendment 9 seeks to achieve, but in practice it would have no effect. Clause 3(7) as drafted provides that the enactments, instruments or documents to which Clause 3 applies are enactments passed or made or instruments or documents issued before this Bill is passed and, subject to express provisions to the contrary, enactments that are passed or made or instruments or documents issued after this Bill is passed. Inserting the word ““only”” makes no difference at all to that, as it does not alter the enactments, instruments and documents to which Clause 3 applies. The effect of Clause 3 as drafted is that, so far as appropriate, general customs functions conferred on HMRC in enactments, instruments or documents made, passed or issued before the end of the Session in which the Bill is passed or, unless expressly provided otherwise, after this Bill is passed will be deemed to have been conferred on designated general customs officials as well. This clause therefore provides the mechanism by which a designated general customs official will have access to the functions, powers and protections afforded to an officer of HM Revenue and Customs in respect of general customs matters both now and in future. It also ensures that policy guidance and instruction documents issued to officers at HM Revenue and Customs will apply where appropriate to a designated customs officer. Generally speaking, it is right that functions, new or amended powers and protections that are granted to officers of HMRC in the future should apply automatically, together with the associated policy guidance. This reflects the fact that, although the UKBA will be principally responsible for the exercise of these functions at the border and HM Revenue and Customs for their exercise inland—these are the two separate chunks—in many cases they will be exercising the same powers. Where it is not appropriate, however, for functions and powers conferred on officers of HMRC to be given automatically to designated general customs officials, this can be provided for expressly. In the absence of a provision in Clause 3 ensuring that any general customs functions conferred on officers in future are usually conferred at the same time on designated general customs officials, unnecessary inconsistencies might arise in the respective approach of the UKBA and HMRC to the exercise and protections afforded in respect of the same customs functions. As regards Amendment 18, Clause 7 already limits the scope of the director’s functions to those contained in enactments made or passed before the end of the Session in which this Bill is passed, or in instruments or documents issued before the passing of the Bill. Therefore, I believe that the amendment is unnecessary. On the point made by the noble Baroness, Lady Miller, I do not have at my fingertips exactly what guidance will be available. I am not exactly sure what guidance is available at the moment when one goes through customs and immigration. Generally, I tend to do what they tell me to do as long as it does not seem illegal. However, I shall certainly find out what that is and come back to her. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.