Borders, Citizenship and Immigration Bill [HL]

My Lords, Clause 30 extends the existing regulatory making power given to the Secretary of State in Section 41 of the Police and Justice Act 2006 so that she can give the Independent Police Complaints Commission an oversight role in England and Wales. This will apply in respect of the exercise of customs functions by officials of the Secretary of State and the Director of Border Revenue, and the provision of services—other than those involving escorting and detention, which fall under Part 8 of the Immigration and Asylum Act 1999—relating to the discharge of those customs functions and the immigration and asylum-related enforcement functions referred to in Section 41(1) of the 2006 Act. As I think the House is aware, oversight of the provision of services involving escorting and detention is already undertaken by the Prison and Probations Ombudsman. The noble Lord’s amendment would enable the Secretary of State to make regulations giving the IPCC an oversight role in respect of the functions to which I have referred not only in England and Wales, but in Northern Ireland, Scotland and overseas. As has been mentioned, in Committee a similar amendment was proposed by the noble Lords, Lord Avebury and Lord Roberts of Llandudno. However, there has been no change to our view that any such power to extend the IPCC’s jurisdiction is unnecessary and would be inappropriate. I do not believe that the IPCC would want that. The Government are committed to securing appropriate, proportionate oversight of all complaints, incidents and conduct matters relating to the UK Border Agency or its contractors, but it has always been and remains our intention that the IPCC should have a role only in relation to the UKBA in England and Wales, just as it does in respect of the police and the other organisations that it oversees. I should like to explain why we think it is inappropriate to give the Secretary of State power to extend the IPCC’s jurisdiction, as envisaged in the amendment. First, it is not clear that the Government would be able to secure the necessary overseas powers that the IPCC would need in order to investigate matters in the way envisaged in the amendment. Secondly, if it is intended to propose that the IPCC look at matters overseas involving detention and escorting, this would be a significant creep in the scope of the matters to be overseen by it. Further, Section 41(3) of the Police and Justice Act specifically carves out detention and escorting matters from the IPCC’s remit in view of the existing oversight role given in respect of those matters to the Prison and Probation Ombudsman. We would not want to change that position. The policy intention behind Section 41 of the Police and Justice Act 2006 was to ensure that the IPCC provided independent oversight of UKBA officials exercising enforcement powers consistent with its oversight of the police and other law enforcement agencies. The amendment would give the IPCC much greater powers in respect of the border force and its contractors than it has in relation to the police and other agencies that it oversees. We feel that that would be inappropriate. The noble Lord, Lord Avebury, has made clear that he has concerns about the oversight arrangements for the escorting of immigration detainees overseas. I shall try to explain arrangements in this area. Where a detainee has displayed disruptive behaviour or where we believe he will not comply with removal directions, escorts are provided on the aircraft who are responsible for the detainee on the flight, and remain with detainees until they are handed over in destination countries. Where the detainee is known to have a medical condition, a medical escort is provided if required. Escorting officers are regularly monitored at the airport up until the point of departure, which tends to be the point at which a detainee becomes disruptive. It is often an extremely difficult and very unpleasant task for them to do. They are permitted to use reasonable force against non-compliant or disruptive detainees, but only where it is considered necessary and as a last resort. They are trained in approved methods of control and restraint including, where appropriate, the application of mechanical restraints such as handcuffs. Restraints will be used only as long as they are assessed to be necessary. After each job, escorts are required to provide end-of-task reports. These include use-of-force reports if force was employed. All uses of force must be recorded and reported to the contract monitor, who reviews every incident to ensure that the use of force is proportionate and reasonable. The Prisons and Probation Ombudsman is the correct body to oversee complaints, incidents and conduct matters relating to detention and escorting functions undertaken by UKBA's officers, officials and contractors. In essence the Prisons and Probation Ombudsman investigates deaths in detention and also considers complaints where detainees are not content with the response they receive from the border force or the contractor. This oversight is not restricted by geographical boundaries and therefore the type of escorting work I have just described can be referred to the Prisons and Probation Ombudsman if the complainant is not satisfied with the border force’s handling of their complaint. This oversight ensures that there is suitable scrutiny of matters arising while immigration subjects are detained, escorted and removed from the UK. The noble Lord, Lord Avebury, referred to the Home Secretary’s appointment of Dame Nuala O’Loan to review independently the border force’s handling of the allegations that appeared in the Independent newspaper’s Outsourcing Abuse dossier. This concerns cases where it was suggested that some of those removed from the United Kingdom had been assaulted by the border force’s staff and its contractors. I am afraid that I cannot give an exact date when the report will come out. Under new arrangements, all allegations of serious misconduct against the border force staff and contractors are now investigated by the professional standards unit, a specially trained team of investigators independent of other business areas. These arrangements were implemented in response to the Complaints Audit Committee’s recommendations for improving the quality of investigations. The Prisons and Probation Ombudsman provides a robust oversight of detention complaints where the complainant is dissatisfied with the investigation carried out by UKBA investigators. UKBA officers and officials are exempt from prosecution under French or Belgian law for acts committed in the UK control zone at juxtaposed controls in those countries where the relevant acts take place in the course of the officers’ or officials’ duties. Under the terms of the treaties in place for juxtaposed controls, those matters are investigated by the authorities of the host state and all evidence gathered is handed over to the relevant police authorities in the UK for consideration under UK law. All criminal matters that do not relate to the exercise of official functions in a UK control zone are a matter for the French and Belgian authorities and will be processed in accordance with their domestic legislation. I am sure that your Lordships will also wish to know what oversight there is of contractors at the juxtaposed controls and, in particular, of those who search freight. Section 40 of the Immigration, Asylum and Nationality Act 2006 provided for and regulated the work of contractors searching freight at border control. The UK border force currently employs Eamus Cork Solutions—ECS—a French security company at juxtaposed controls. Given the limitation on its jurisdiction to England and Wales, the IPCC is not responsible for overseeing those contractors. However, the legislation provides for a Crown servant to be appointed to monitor the exercise of these powers, to inspect the way in which they are exercised and to investigate and report to the Secretary of State any allegations made against a contractor.