Borders, Citizenship and Immigration Bill
I welcome the said Cabinet Secretary for Justice, Kenny MacAskill, who is accompanied by Elizabeth Sadler, head of the organised crime unit in the police division of the Scottish Government. Mr MacAskill, I invite you to make an opening statement.
The draft legislative consent motion seeks approval for the United Kingdom Parliament to apply sections 1 to 4 of the UK Borders Act 2007 to Scotland. Those sections allow a designated immigration officer at a port or airport to detain for up to three hours, pending the arrival of the police, someone who is subject to an outstanding arrest warrant.
The power of detention relates to non-immigration offences and falls in a devolved subject area, so the Parliament's consent to legislate is required. The relevant provisions appear in clause 49 of the UK Borders, Citizenship and Immigration Bill, as introduced to the House of Lords on 15 January.
Last week, the clerk to the Subordinate Legislation Committee drew to our attention the fact that clauses 34 and 35 of the bill seek to bestow order-making powers on the Scottish ministers, potentially bringing those provisions within devolved competence. I do not intend to seek the Parliament's agreement to those provisions being included in the UK bill because I have agreed with the UK Government that they are unnecessary and will be removed from the UK bill at the earliest opportunity.
Scottish Government officials were not consulted about those provisions, which I understand were added shortly before the bill was introduced to help future-proof the legislation. They would have given the Scottish ministers a power to amend by order any devolved provisions in part 1 of the bill. However, as part 1 does not include any devolved functions, the powers are unnecessary. The UK Government has agreed that they will be removed and, for that reason, the LCM does not cover those provisions.
Clause 49 will ensure that Scotland's borders are as secure as those elsewhere in the UK and that Scotland cannot be perceived as an easy way into the UK, where wanted people can enter and leave without hindrance. There is currently what might be seen as a loophole in the law that could mean that an immigration officer would have to allow a wanted person to enter or leave Scotland even if they were aware of an outstanding arrest warrant in that person's name. Immigration officers in England and Wales already have a power of detention; clause 49 extends that power to Scotland, with appropriate safeguards.
Although the provisions will strengthen the law, I should make it clear that the position in practice will be largely unchanged. Police are routinely present at our major ports and airports, and they have primacy for policing in Scotland, including at our airports. Advance notification of passenger data allows immigration officials to alert the police to wanted persons who are either entering or leaving the country. Even when the port does not have a constant police presence, notification normally allows the police to attend and detain the wanted person when they arrive.
At present, if an immigration officer is aware of an outstanding warrant but the person arrives before the information is passed to the police, the officer is unable to hold that individual pending the arrival of a police officer. To ensure that Scotland's borders remain as secure as those elsewhere in the UK and that those who are subject to arrest warrants cannot enter or leave the country unhindered, the provisions should be applied in Scotland.
The provisions also set out the offences of absconding from, assaulting and obstructing an immigration officer who is exercising the power of detention, and the maximum penalties for those offences.
The bill will close a potential loophole and ensure that immigration officers can support the police effectively in tackling crime. I therefore ask the committee to support the legislative consent memorandum.
I have just one question. Have immigration officers been placed in the invidious position that the cabinet secretary described?
We are not aware of that happening, but changes are occurring because of the establishment of the UK Border Agency and changes in customs and immigration operations. We all expect changes to how arrivals at and departures from airports are dealt with. To an extent, the bill prepares for them.
In our discussions with the police, and with their full support, we have always recognised that the police forces in Scotland should have primacy. The bill will deal with a potential gap when a police officer is not present and information comes to light that somebody who has landed or who is seeking to depart is subject to a warrant. Three hours is an appropriate time for which to be able to detain such an individual while waiting for police to arrive.
We are maintaining the primacy of the police because, if an altercation occurs on an aeroplane or if somebody misbehaves in WH Smith or Costa Coffee in the departure lounge, that is a police matter that the Scottish police should deal with. The bill will deal with a small number of incidents that have not yet arisen but which might occur because of changes in the system. We are just preparing for every eventuality.
Are the police content with the provisions?
The police fully support them.
I want to be clear about the circumstances in which such a situation might arise. The provisions postulate a clear-cut position in which immigration officials know of a warrant, in which case they may or may not need the three-hour power. Will in-between positions apply in which it is thought that a warrant might exist? From where does the information for officials come? Do they have direct access to knowledge of warrants? Does the information come from the police? How does the system work?
The major ports and airports will be dealt with. We have sophisticated computer systems that record arrivals and departures not only for security purposes but for other reasons—for example, when tragedies occur on aeroplanes or ships, we need to know who was on board. A great deal of information is already collected. In the main, anything that is flagged up should be brought to officials' attention.
In most circumstances, when people arrive at Edinburgh, Glasgow and Aberdeen airports—the major points of embarkation—a police officer is routinely present. Even Stranraer normally has a police presence. However, people might land at places where only an immigration officer is present or, for some reason, information might come to light only as a person is boarding or leaving a vessel.
Giving clear examples is difficult, because we do not expect such situations to arise often, as police will be present and prior information will be available. However, as I said, somebody could suddenly appear when, for whatever reason, no police officer was present. We want to ensure that, if it comes to light that somebody who seeks to depart from the country is subject to a warrant, we can detain them.
I am asking not for examples but for information about the process. I ask out of genuine ignorance. Is a routine check made on passenger lists? Do the police pass on the names of people who are subject to outstanding warrants? How does the system operate?
I understand that such matters are all dealt with by the cross-fertilisation of databases. Such issues are flagged up on databases that are available not only to the police through the police national computer but to other agencies, such as the UK Border Agency. The system flags up whether somebody is subject to an outstanding warrant or should be watched in relation to terrorist activities. Data are shared among organisations that share the common goal of making Scotland and the United Kingdom safer.
We seek simply to achieve the appropriate balance between ensuring that the police have primacy at our ports and airports, which is what they want and what we desire to provide, and dealing with instances in which police officers are not present. We expect most such situations to be dealt with by technology rather than by sound policing or investigation but, in some instances, using the provisions will be appropriate.
I would like to push the issue to the limit. Can you envisage a situation in which an immigration officer does not have a policeman close by, makes a phone call to the police, and the police say, "Aye. That's the man. We need to hold him"? Should the immigration officer arrest the person on the basis that the policeman has said that they should?
We would not expect the trigger to be the word of the police officer; rather, it would be the information that came to light to the border immigration officer. We propose to give immigration officers the power to detain individuals for a maximum of three hours, and they must tell the police about individuals.
I will give an unlikely scenario. Somebody could land at Wick airport, where there could be an immigration officer for whatever reason. Information could come to light to that officer, and nobody from Northern Constabulary might be there. The trigger for action would be the immigration officer phoning Northern Constabulary and saying, "I've got this guy, who I can hold for three hours." I would be surprised if the police said, "Well, actually, there is a warrant, but we're not interested." The trigger would be the information that is available and the warrant, not the say-so of the police officer. The police officer's responsibility would be to exercise our constabularies' primacy of policing.
My concern is about who will know that a warrant exists. From what you have said, I understand that information systems in front of an immigration officer would enable him to work out who the person in front of him appeared to be.
Absolutely.
Let us suppose that the computer has broken down. Such things happen. I am simply trying to establish how much good information an immigration officer would need. What quality of information would he need before he could act?
If the computer system had broken down, it would be difficult for the officer to know about the person. We are trying to ensure that people on the sex offenders register do not fly to or from Bangkok or anywhere else, and that people who are seeking to escape justice here or fleeing justice elsewhere in the world do not travel. A lot depends on the software, but the information that will be available to immigration officers will be the same as that which is available to police constables, except for some that is not available because it is clearly categorised as sensitive.
We are simply trying to ensure that we have only one police force in Scotland per se, consisting of our constabularies. We have the UK Civil Nuclear Constabulary at Wick and the British Transport Police, but our constabularies will have primacy. People will be given specific powers to ensure the safety of our communities and communities elsewhere by being able to detain people for up to three hours. In light of Scotland's geography, we think that that is more than adequate time for a police officer to come and take away an individual.
We have received representations from the Scottish Refugee Council, including on the complaints procedure. It has stated that the complaints procedure in Scotland might not be as robust as procedures elsewhere in the UK. Do you want to comment on that?
Yes. There are difficulties in that respect that we must consider. We are working to reach an agreement with the police complaints commissioner for Scotland so that he can oversee certain complaints that have been made about UK Border Agency staff in the same way that he oversees complaints that have been made about police officers. That seems to us to be the appropriate approach.
Immigrants, refugees or others may complain about UK Border Agency members of staff, who are predominantly based elsewhere. It seems to us that the police complaints commissioner is the appropriate person to deal with such complaints, given that we are talking about quasi-police powers, if we can put things in that way. We are working towards having a repeal and review system.
Is legislation needed to make that possible or can you do what was done with the criminal injuries legislation in the early days, when there was a non-statutory arrangement?
I think that we are talking about a section 104 order, but the process is relatively straightforward. We do not expect any requirement for primary legislation.
Elizabeth Sadler (Scottish Government Police and Community Safety Directorate):
A section 104 order, under the Police, Public Order and Criminal Justice (Scotland) Act 2006, allows the police complaints commissioner for Scotland to enter into agreements with a range of UK police and police-related bodies to arrange for any complaints about their personnel in Scotland to be dealt with by that commissioner. The section 104 order provides the framework for taking forward such agreements.
Was that order made by the cabinet secretary or was it another kind of order?
The order was made under section 104 of the Scotland Act 1998 as a consequence of the 2006 act. The order deals with a range of issues in the 2006 act on which primacy for the legislation rests with the UK Government. The specific provision allows the police complaints commissioner for Scotland to enter into agreements with UK bodies that allow the commissioner to investigate allegations against those bodies' staff who operate in Scotland. Discussions are taking place with UKBA about allowing complaints against its staff in Scotland to be dealt with in the same way.
So you are saying that the cabinet secretary and his UK counterparts will facilitate arrangements and make them happen.
Yes.
Members have no further questions. We will consider the memorandum under agenda item 7.
I suspend the meeting briefly to allow the cabinet secretary's team to change seats for item 5.
Meeting suspended.