Clause 36 - Powers of immigration officers

Crime and Courts Bill [Lords] – in a Public Bill Committee am 11:30 am ar 7 Chwefror 2013.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs) 11:30, 7 Chwefror 2013

I beg to move amendment 84, in clause 36, page 34, line 29, after ‘2000’, insert ‘who is working in Criminal and Financial Investigation’.

Photo of Nadine Dorries Nadine Dorries Ceidwadwyr, Mid Bedfordshire

With this it will be convenient to discuss amendment 85, in clause 36, page 34, line 41, leave out subsections (4) and (5).

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

It is a pleasure, as always, to serve under your chairmanship, Ms Dorries, on this bright and sunny day. I hope that our debates will be as joyful.

Opposition Members are not opposed to the clause in principle. We have called for UK Border Agency officers to have the powers to deal with illegal immigration. I am disappointed not to see the hon. Member for Dover in his place today. Perhaps he has gone to get a new battery for his iPad; I do not know. On Tuesday, he was very concerned about overstayers and dealing with illegal immigration, as are Opposition Members.

The amendments, which are probing, attempt to get clarity from the Government on how the new powers will work and what powers the UKBA customs officers will have. We certainly recognise that it is a challenge for officers who turn up at premises and identify an overstayer who is here illegally, when they have no ability to deal with the issue and have to call on other assistance to be able to resolve the matter. However, the Government have not yet set out the exact powers that the officers will have and precisely how such powers will be used. I am sure the Minister will agree that we would like all officers to uphold the law and exercise it with judicious expertise.

The amendments speak to the specific powers that the Bill extends to immigration officers and are designed to test how the Government see the powers being used.  We know that the Government have talked about a UK border command being part of the new crime agency, but we have yet to see any details on the powers and operational activities. Again, I refer to my own immigration casework—a cross that I bear with great pride for my people in Walthamstow. I have seen instances of UKBA officers not acting in an appropriate manner and who have perhaps gone beyond their remit. The clause will bring about a change in the powers, but how they will work is a question for all of us.

The extension of powers under the Regulation of Investigatory Powers Act 2000 and the Proceeds of Crime Act 2002 will be new for the officers. I look to members of one half of the coalition Government who I know have extreme concerns about RIPA. I hope that they will share my wish to ensure that it will be clear who is able to operate the powers under what jurisdiction. There is silence at the moment. I am sure that later on we will hear clarion calls emphasising how important it is that RIPA should not be abused.

The powers are serious. They authorise the use of covert surveillance, intrusive surveillance, and property interference such as wire tapping and installation of listening devices, as well as powers to authorise confiscation, detain cash and undertake money-laundering investigations. There is no detail at present. The Government have talked about providing guidance in due course about how criminal and financial investigation teams within the UKBA can operate, but we have not seen any details yet. If all officers are able to use the RIPA powers, I am sure many people in both the old and the new coalition might be concerned about how that will play out.

Amendment 84 simply seeks to do what the Government say they want to do in the explanatory notes to the Bill. It seeks clarity that the powers will be extended only to the

“Criminal and Financial Investigation teams in the UK Border Agency”,

the people with the appropriate experience and expertise in using such powers, rather than giving the impression that all members of UKBA staff would be able to use such powers.

Amendment 85 speaks to concerns about the Proceeds of Crime Act 2002 and how it might be used by UKBA officers. It seeks to clarify how the Government envisage the powers will be used and which officers will be able to use them, and how that will then influence the UK border command. I hope that the Minister for Policing and Criminal Justice will clarify what the UK border command will do, where it will operate, who will be responsible for it and how it will be tasked. Obviously, there is an issue between the UKBA and the National Crime Agency. When the new and very serious powers are extended to customs officers, we need to have confidence that the powers will be used in an appropriate manner in support of tackling illegal immigration, which we all want to see dealt with. We do not want to see any misappropriation of powers. I look forward to the Minister’s response.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

Welcome back, Ms Dorries, to the fun and frolic of the Committee. I am grateful to the hon. Member for Walthamstow for the tone of her speech and, in particular, for her general support for the purpose  of clause 36. The amendments would limit or remove the extension of immigration officers’ powers conferred by the clause. Amendment 84 would require the authorising officer, who is responsible for authorising applications to interfere with property under section 93 of the Police Act 1997, to be

“an immigration officer who is a senior official” in the Home Office who is also

“working in Criminal and Financial Investigation” at the UK Border Agency.

I appreciate that the hon. Lady’s intention is ensure that access to the powers is limited to immigration officers who work in the immigration criminal and financial investigation teams, but the amendment would actually broaden the range of persons who are permitted to authorise interference with property, which would lessen the safeguards by potentially lowering the grade of the authorising officer.

Clause 36(1) already establishes that only

“an immigration officer who is a senior official” in the Home Office

“within the meaning of the Regulation of Investigatory Powers Act 2000 and who is designated” for that purpose by the Home Secretary can be an authorising officer. In a police force, the chief constable acts as the authorising officer. In the Border Agency, the director of operations and deputy chief executive is of equivalent seniority, and they act in that role. If the authorising officer had to be drawn from the criminal and financial investigation teams, someone of a lower grade would perform the role. As such, amendment 84 would weaken the controls on the exercise of property interference, although I am sure that that is not what the hon. Lady intended.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I am interested in what the Minister says, but I am confused. The Government’s explanatory note on clause 36 explicitly states that the purpose of the change to RIPA is

“to provide for immigration officers working in Criminal and Financial Investigation teams in the UK Border Agency (“UKBA”) to be able to apply to exercise property interference powers equivalent to those already used by customs officials.”

The Minister now seems to be saying that that is not correct. Will he clarify why that is in the explanatory notes?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

No, the misunderstanding is about the authorising officer. At the moment, the director of operations, who is also the deputy chief executive, acts as the authorising officer. In legal terms, he is the equivalent of a chief constable, although he and the chief constables might have different views on that. Amendment 84 would require the authorising officer to be within the criminal and financial investigation teams, so the authorisation might be done at a lower level of the organisation. That is the point that I am trying to make.

I appreciate that the other purpose of the amendment is to write into the Bill the assurance that is given in the explanatory notes that the exercise will be limited in the way the hon. Lady has described. I assure her that we will limit the powers to specially trained immigration officers investigating immigration crime, and we do not  feel that an explicit provision in primary legislation is necessary. Looking across the piece at the UKBA, we do not have that degree of specificity for customs officials, who currently have such powers. The aim is to provide parity between customs and immigration officers.

In practice, due to the existing safeguards in RIPA and the Police Act 1997 only specifically trained immigration officers would be able to exercise the powers in clause 36. Section 32 of RIPA outlines that for a senior authorising officer to grant authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is “proportionate” and that it is necessary

“in the interests of national security; for the purpose of preventing or detecting crime” and

“in the interests of the economic well-being of the United Kingdom”.

The Police Act also imposes strict controls over the authorisation of property interference.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I thank the Minister for that helpful clarification. Will he update the Committee on how he sees the new provisions under the draft Communications Data Bill? In particular, how would the restrictions that might be imposed on the use of the powers in clause 36 in relation to people using online technologies fit with the description he has given? Will he update the Committee on the Home Office’s current thinking on that matter?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

The hon. Lady tempts me to a disquisition on the Communications Data Bill, but I will resist that temptation because it is not within the scope of the amendments, so Ms Dorries would rule me out of order.

Because the activities detailed in clause 36 are undertaken only by specialist officers in the criminal and financial investigation teams, there is no question of immigration officers stationed at the border being able to exercise these powers. They have not been trained in the exercise of the powers or in any other criminal investigation activities, and the investigation of serious crime is certainly outside the scope of their job description. Furthermore, as with customs officials, the authorising officer would never authorise any application to interfere with property or the undertaking of instructive surveillance unless said activity was to be carried out by a suitably trained individual. The Office of the Surveillance Commissioner will provide oversight and scrutiny of all applications.

There are also practical difficulties in referring to the UKBA’s criminal and financial investigation teams in statute, as they have no separate legal personality. Without amending primary legislation, there would be no flexibility to account for any future organisational or structural changes. I am happy to assure the Committee that my experience of the UKBA is that another structural change is always just around the corner, so trying to limit them in primary legislation would be ill-advised.

Amendment 85 would remove the powers sought for immigration officers to carry out financial investigations under the Proceeds of Crime Act 2002. By conferring such powers on immigration officers, we seek to enhance the effectiveness of the agency’s investigatory capability and to place immigration officers on an equal footing with their customs officer counterparts. In particular, it will enable immigration officers to play their part in  dealing with the proceeds of organised immigration crime and lessen their reliance on outside bodies, particularly the police.

At present, only customs officials in the UKBA are able to use the full range of powers under the 2002 Act. Consequently, immigration officers have to rely on the few accredited financial investigators in the UKBA or seconded police officers to conduct investigations into serious immigration offences. That is clearly a weakness in the agency’s ability to fight such criminality.

The hon. Lady, quite reasonably, asked about the specific powers. Clause 36 will amend the Police Act 1997 and RIPA to allow immigration officers who are investigating serious immigration crime to apply for authorisation to interfere with property and to exercise covert intrusive surveillance powers for use in residential premises or to install covert audio or video equipment. Those extensions will be subject to all the statutory safeguards that exist under part 3 of the 1997 Act and under RIPA.

Usage will be limited to only the investigation of serious crime, and all applications will require a sign-off by an authorising officer, who will be a senior civil servant and closest equivalent to a chief constable grade, as I have explained. In addition, all non-urgent intrusive surveillance and property interference authorisations will require the prior approval of the surveillance commissioner before they become valid and before any covert activity can take place.

The UKBA already has a track record of using such covert investigatory powers for the purposes of customs investigation, and its use has been subject to successful independent inspection by the Office of Surveillance Commissioners. The aim of the amendments to RIPA and the 1997 Act is to equalise the powers of immigration officers with their customs officer counterparts and other law enforcement agencies.

To give as full an explanation as I can about the powers, subsections (3) to (6) of the clause and schedule 17 will allow immigration officers to exercise the powers relating to money laundering, confiscation and detained cash investigations under part 8 of the Proceeds of Crime Act. Customs officials are already permitted to use such powers, but immigration officers have had to rely on the few accredited financial investigators in the UKBA or on seconded police officers to conduct such investigations. The UKBA’s own customs officers have been unable to use powers under the 2002 Act in respect of immigration crime, despite being part of the same criminal investigation team. The Bill will ensure that the UKBA can take more effective action to counter all the immigration offences in its remit.

One of the many discussions we had in Committee on the sundry immigration Bills in the previous Parliament, when the Government created the UKBA, was about the fact that there are different levels of training and powers available to people who are working in the same agency. Clause 36 will reconcile one of the most important of those differentiations.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs) 11:45, 7 Chwefror 2013

What the Minister is saying is helpful. As we said at the start, the Opposition agree that there is a need to tackle some of the anomalies in the powers.

The Minister is making a strong case about the way in which the UKBA will operate. Will he say a little bit about how that will influence UK border command, which is one of the four tasks of the National Crime Agency, in terms of who will make the tasking decisions, how that will operate and who will be responsible for some of the areas of immigration control that he is talking about? Obviously, there would be a crossover with border command. It would be helpful if he explained how he envisages that working.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

The hon. Lady says that there will be a crossover, but there will not be a crossover. There will be separate institutions, both with crime-fighting powers. This clause is not about the powers of the NCA officers who will be working in the NCA border policing command. Part 1 of the Bill, which we have already discussed, provides for NCA officers to be designated with the powers of a constable, customs officer and immigration officer. So the NCA border command will have people with wider powers than the customs and immigration officer powers we are discussing here, because they will have the powers of a constable as well.

The way it works—which the hon. Lady is also asking about, perfectly reasonably—is that the border policing command will increasingly task UKBA to lead investigations into organised immigration crime. We expect such investigations to be undertaken effectively and promptly. To do that the UKBA people will need the extra powers given to them in this clause. That is how it all fits together. The hon. Lady said that these were probing amendments. Having heard the arguments, I hope that her questions are satisfied and that she is prepared to withdraw the amendments.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

The Minister has been very helpful in clarifying some of the issues about operational decisions. I am glad to hear that he understands the concerns that we might have, certainly on the Opposition side of the Committee, about RIPA being extended. I still invite some of the Members on his side to speak up, but clearly that will not happen. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Schedule 17 agreed to.