Borders, Citizenship and Immigration Bill [HL]

I hope that the noble Earl, Lord Sandwich, will say a few words on this amendment, part of which is relevant to the considerations that he has already raised. As we have said, we have no objection in principle to the steps being taken in the Bill towards what we have envisaged as a UK border force, and that has been our party’s policy for the past couple of years. Our concern is that immigration officers will be given revenue and customs functions but without the appropriate accountability and safeguards. The purpose of Amendment 30 is to change the power to apply the PACE codes to the acts of customs officials and immigration officers to a duty. The purpose of the second amendment, as I am sure the noble Earl, Lord Sandwich, will be pleased to hear, is to ensure that private contractors exercising functions in connection with investigations or detention will also be subject to the PACE codes. The Police and Criminal Evidence Act 1984, which came into effect after the civil unrest of the early 1980s and the recommendations of the Scarman report, protected both police officers and those being dealt with by the police, by introducing codes of practice regulating the use of police powers, notably in sensitive areas such as stop and search, arrest, detention and questioning. Immigration officers now exercise almost the same powers in relation to potentially vulnerable people and for their own protection as well as that of the person who is the target of these powers, the PACE codes of practice should apply to them. So we very much welcome the Government’s decision in Amendment 29 to apply the PACE orders specified from Royal Assent, though some of the gilt was taken off the gingerbread by the power to amend or repeal that new clause. The PACE codes themselves can be amended from time to time, but if the Secretary of State is to be given absolute discretion to apply them only to the extent that she thinks proper to UKBA or HMRC officials exercising similar powers of search, detention, treatment and questioning of suspects or the recording of interviews, we can have no great confidence in her commitment to the principle. We should bear in mind the history of the matter: the Immigration and Asylum Act 1999 gave the Secretary of State power to apply full or modified versions of the PACE codes to immigration officers’ powers of arrest, questioning, search or taking a person’s fingerprints, entering or searching premises or seizing property, but in fact only two orders were ever made under that provision, the last in 2001. Ministers have repeatedly said, whenever immigration legislation has come before Parliament, that further orders were under review, but have done nothing as the exercise of police powers by immigration officers and private contractors has increased with every Act. Immigration officers have numerous police and police-like powers, including the power to arrest with and without a warrant; to search and arrest without a warrant; to enter premises and make an arrest; to search premises; to search personnel records with and without a warrant; to search arrested persons and those in custody; to seize material; to detain; to search detained persons and retain evidence; and to fingerprint persons—and the use of force in the exercise of all those powers is expressly sanctioned. That extends to the private contractors, who may exercise several of those powers. While many of the powers relate to immigration-related offences, those who may be subjected to them include British citizens as well as foreign nationals, children as well as adults. Some of the powers have no specific relation to immigration-related offences, such as the power to detain someone at a port for up to three hours on suspicion that he may be of interest to the police and to retain evidence revealed from a search of that person. During the passage of the earlier UK Borders Bill through both Houses, Ministers stressed the importance of much stronger oversight, transparency and accountability of what is now the UK Border Agency. That will not happen, however, if we have no certainty that officials exercising the even greater powers that they are now to be given are not subject to the standards expected of the police in exercising the same or similar powers. At Second Reading the noble Lord, Lord Ramsbotham, drew attention to a dossier containing the details of 48 alleged assaults on asylum seekers by security guards, which he passed to the Home Secretary in July last year. That is still being investigated by Dame Nuala O’Loan. My noble friend Lord Thomas of Gresford also drew attention to the operation of secret and unlawful immigration policies revealed in the December 2008 judgment of the High Court in R v Abdi and others. On 18 February this year, the High Court ruled in yet another case, where a policy was not publicly disclosed and was relied upon unlawfully in circumstances where serious allegations of mistreatment were made. These policies relate to detention and removals respectively, so there is abundant evidence to demonstrate the necessity of clear and publicly available guidance and instructions to immigration officers, and to private contractors exercising immigration powers, that accord with the standards expected of police officers in exercising similar powers. As the late Lord Williams of Mostyn recognised on behalf of the Government as long ago as 1999, the adoption of PACE codes of practice is necessary—and, 10 years later, is seriously overdue. If immigration officers and private contractors are not sufficiently trained or competent to be made publicly subject to PACE, they ought not to be exercising the powers that they already have, let alone those that they will be given under the Bill. I beg to move.