Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013

Lord Taylor of Holbeach Excerpts

Tuesday 4th June 2013 Grand Committee

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the order before us today will apply certain provisions of the Police and Criminal Evidence Act 1984, commonly known as PACE, to criminal investigations conducted by immigration officers. The direct application of these powers to immigration officers for the first time reflects the increasing incidence of immigration officers taking on criminal investigations. It does not affect existing administrative powers of detention, which will continue to be used for the vast majority of immigration operations under the Immigration Act 1971, so criminal investigations are the focus.

The order will also apply to designated customs officials and to persons detained by designated customs officials. This includes powers of arrest, search of premises and seizure of evidence as well as obligations in respect of persons detained on suspicion of having committed customs offences. It will also repeal part of Section 22 of the Borders, Citizenship and Immigration Act 2009, which provided for the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 to apply to designated customs officials undertaking criminal investigations in England and Wales. This was the legislative vehicle that afforded PACE powers to customs officials who transferred from HMRC to the Home Office in 2009.

At that time, the commitment made to Parliament was that this was to be a temporary measure pending the coming into force of one order that applied to both immigration officers and customs officials within the Home Office. This is the order before noble Lords today which will fulfil that undertaking made to Parliament. The reason that, to date, these powers have applied only to customs officials undertaking criminal investigations and detention derives from the time when customs work was an integral part of HMRC. The increasing incidence of immigration officers taking on criminal investigations as part of the focus on tackling immigration crime has made it necessary to extend some of the criminal investigation powers that currently apply to police and designated customs officials to immigration officers. These criminal investigation powers will be used only where the criminal prosecution of an individual is realistic. It is normally in the public interest to use administrative immigration powers to remove an illegal entrant. Removal from the UK will take precedence over a criminal prosecution.

The application of PACE provisions to immigration officers will deliver both operational and resource benefits. At present, police and immigration officers on immigration enforcement teams often work in tandem and deploy jointly on operations where they are forced to use different sets of powers, derived from PACE for the police or the Immigration Acts for immigration officers. This dual approach causes confusion and accountability problems as well as having a negative impact on operations by, for example, requiring separate briefing for different officers.

Noble Lords will be aware of the Home Secretary’s recent announcement of the creation of a separate immigration enforcement arm of the Home Office whose remit is to tackle any abuse of our immigration laws and to encourage compliance. It is individuals within this new entity who investigate immigration crime alongside their colleagues in Border Force, who deal with customs crime, who will benefit from this order. For the first time, it will place all appropriately trained criminal investigators on the same legislative footing regardless of their background and remove any confusion about the legal basis of their actions. In addition to simplifying the operational landscape, the application of PACE to immigration investigators will deliver direct benefits in the form of added powers to tackle crime. Specifically, these will be the ability to seize evidence under Section 19 of PACE and the ability to apply for search warrants in respect of special procedure material under Schedule 1. Powers of search under Sections 18 and 32 are also much simpler in application than their equivalents in Part 3 of the Immigration Act 1971, which is currently the only legal basis on which search powers are available to immigration enforcement investigators.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, again, I am grateful to the Minister for his explanation. As I understand it, the order before us extends the powers of arrest, search and seizure to immigration officers and customs officials. The Minister will be aware that, in the interests of effective policing, we have called for these measures to be introduced. Clearly, given the kind of investigative work, particularly on issues such as human trafficking and facilitating illegal immigration, it is appropriate, as the order states, that officers should act within a PACE-compliant framework. That will now include customs and immigration officers. We support that.

The Minister would be disappointed if I did not ask him a couple of questions. Paragraph 7.4 of the Explanatory Memorandum refers to mixed investigative teams with the National Crime Agency, which makes sense if they are looking into serious organised crime relating to immigration issues or human trafficking. Does that mean, for example, that all customs or immigration officers acting in a joint team on an NCA investigation would have the same powers as the police officers in that team and that they would retain those powers? If it does not, can the Minister say anything about the differences? I assume that additional training would be required for the officers to ensure that they know the additional powers that they have and how they can properly use them.

On the joint teams, the NCA—as the Minister will know—will not apply fully to Northern Ireland because of a difficult situation which has arisen, which the Government could have done more to resolve early on, if I am honest. I am curious whether these powers and this order will also apply to customs and immigration officers in Northern Ireland, given that the NCA will not operate in that way in Northern Ireland. If the Minister could given me an answer on that, it would be very helpful. I notice our Northern Ireland spokespeople are here today and would be grateful if the point could be clarified. I see puzzled faces behind the Minister and, if it is not clarified today, I am happy for somebody to write to me about it.

It is also my understanding that, while police officers are members of the Police Federation, the new officers who will be subject to and have these powers—those employed by the border agency, for example, or Border Force—are members of a different trade union. Over the years, they will have had different rights at work and different terms and conditions of employment. The order makes no mention of any changes to those at all, so I have assumed that no changes are planned to their terms and conditions of employment or their rights at work and that no changes are expected. I would be grateful if the Minister could confirm that for me.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her comments. The people working together on mixed teams will have those PACE powers only in relation to their particular function within that team. They will all derive their PACE powers from PACE, so there will be a common source, but it is not correct to assume that, for example, a police constable or an immigration officer will be exercising a customs officer’s powers.

As for Northern Ireland, officers of the National Crime Agency are not included in this particular order because the National Crime Agency has not been set up. The noble Baroness will know that the difficulty in Northern Ireland was occasioned not so much by the customs and immigration issues but by the general powers that exist. The noble Baroness will understand that there is only a partial transfer of responsibility and that National Crime Agency functions will still be exercised in Northern Ireland through powers secured through SOCA. I cannot give her an absolute answer on the extension of this particular attribute in Northern Ireland, but if I can write to the noble Baroness, that will enable me to put this particular change, which is largely designed for England and Wales, into context rather than complicating the matter by trying to answer the question on Northern Ireland.

Designated customs officials are already trained to exercise PACE powers and those immigration officers who carry out criminal investigations will receive equivalent training, relevant to the set of PACE powers to which they have access. The noble Baroness will be aware that the changes that have occurred within UKBA have been made without affecting any terms and conditions of employment of any of the individuals involved.

[Lord Empey]

Will the Minister be kind enough to copy his letter to the noble Baroness to those of us who are in the Committee?

[Lord Taylor of Holbeach]

I am pleased to see the noble Lord, Lord Empey, in his place. I would be very happy to make sure that he is involved, as I recognise his interest in the particular relationship of Northern Ireland to these changes within the statutory instrument.

[Baroness Smith of Basildon]

I would be grateful if the Minister clarified one further point and perhaps agreed to write to me. He said something that I tried to jot down quickly—I am not sure that I got it right—about police officers having the powers of immigration officers and customs officers. I thought that it was the other way round regarding immigration officers and customs officers. Would they have those powers only when they are involved in a joint investigation with the NCA or will they have those powers independently when investigating such cases?

[Lord Taylor of Holbeach]

I am sorry if I have confused the noble Baroness. I had it clear in my mind if it was not clear in my exposition. Each of these specialist elements—police, customs and immigration—are enforcement agencies operating in their particular way. Immigration officers hold their powers totally independently of these other powers. Each agency derives its powers from PACE in an independent fashion. However, it clearly makes it a lot easier, when they are working together, to have powers deriving from the same source, which they do not have at present. The noble Baroness was gracious enough to admit that the 2009 Act needed to put that right at some point in the future. This is the moment at which we have been able to do so.

Motion agreed.