POWER OF ENTRY (Hansard, 12 June 2002)

§ Beverley Hughes
I beg to move amendment No. 90, in page 70, line 44, after "28CA", insert ", 28FA or 28FB".

§ Mr. Deputy Speaker (Sir Michael Lord)
With this it will be convenient to discuss the following: Government amendment No. 91.
Amendment No. 74, in clause 126, page 71, line 16, leave out from "if" to end of line 17 and insert— 'on application made by an immigration officer a justice of the peace is satisfied that there are reasonable grounds for believing'. Amendment No. 75, in page 71, line 20, leave out "employee records" and insert "records of that employee".
Government amendments Nos. 92 and 93.
Amendment No. 76, in page 71, line 25, leave out "employee records" and insert "records of that employee".
Government amendment No. 94.
Amendment No. 77, in page 71, line 33, leave out "employee records" and insert "records of that employee".
Government amendments Nos. 95 to 102.

§ Beverley Hughes
These amendments relate to the new powers of entry to business premises and the power to search employee records. Section 146(1) of the Immigration and Asylum Act 1999 already allows an immigration officer exercising his or her powers under the Immigration Act 1971 to use reasonable force if necessary. Subsection (2) confers an equivalent power on anyone exercising the fingerprinting powers in section 141 or 142 of the 1999 Act or powers under regulations made under section 144, which relate to other methods of collecting information about physical characteristics apart from fingerprinting.
An immigration officer exercising the new powers of entry and search created by clauses 125 and 126 will be able to use reasonable force because these powers are being inserted into the 1971 Act. The use of reasonable force by anyone else, however, requires express provision to be made. As the clauses also confer powers on constables and, in the case of clause 125, on detainee custody officers, express provision has to be made to allow them to use reasonable force.
That has already been done in respect of the power of entry. The first of these amendments therefore makes the equivalent provision when a police constable is using the new powers to search for personnel records. The second makes the necessary consequential change to the title of the sections.
947 The power to inspect employee records under the new section 28FA, which is inserted by clause 126, is very limited. It is a power that does not require a warrant because, for reasons that I shall explain, we believe that that is the only effective way in which it can be exercised. We also believe that we have provided sufficient safeguards in the exercise of the power to ensure that the rights of all parties will be properly protected.
The new power to inspect employee records can be exercised only when a person has been arrested on business premises for one of the specified offences, or when someone is present on business premises who is liable to be arrested for one of those offences. In other words, it requires that a person is identified who is thought to be an immigration offender. If, in addition, the constable or immigration officer reasonably believes that an offence under section 8 of the Asylum and Immigration Act 1996 may have been committed, and that employee records on the premises will be of substantial value to the investigation of the offence, this clause allows him or her to search for, seize and retain those records.
By way of an example, let us suppose that someone has been arrested on business premises for being an illegal entrant. In that case, such a person would not have permission to work in the UK. That would mean that the employer is likely to be committing an offence under section 8 of the 1996 Act by employing that person. When an officer reasonably believes that the employer has committed this offence, and that there will be records on the premises that will substantially assist the investigation of it, he or she can search the premises.
If amendment No. 74, tabled by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), were to be accepted, however, once someone liable to arrest had been identified, everything would have to stop while an immigration officer went off and applied to a magistrate for a warrant to search for the relevant employee records. Quite what the constable would do in those circumstances is unclear because, under the amendment, only an immigration officer would be allowed to apply for a warrant for that purpose.
If the officer were forced to go to the magistrates court to obtain a warrant, the employer would clearly have every incentive and opportunity to destroy any evidence of the section 8 offence that had existed before the officer returned. The fact that the employee had been arrested or identified as liable to arrest would clearly have alerted the employer to the interest of the enforcement authorities. In these circumstances, we believe that a power to search without warrant is necessary and proportionate. The amendment would therefore render the new power in the new section 28FA completely ineffective. That is why we cannot accept it.
Amendments Nos. 75 to 77 would limit the power to search for personnel records under the new section 28FA to a power to search for, seize and retain the records of the person who has been arrested or believed to be liable to arrest. We do not believe that such limitations are practical or desirable. Amendment No. 75 seeks to ensure that the power of search is triggered only when an officer reasonably believes that the records of the arrested person will be found on the premises. The amendment is unnecessary. The proposed new subsection (2) already 948 makes it clear that the power of search will be triggered only if the officer reasonably believes that an immigration employment offence has been committed in relation to the person arrested and that employee records will be found that will be of substantial value in the investigation of that offence.
Amendments Nos. 76 and 77 seek to restrict the scope of the search that can be undertaken and the powers of seizure and retention of employment records to the records of the arrested person. Again, we believe that that limitation is impractical and does not take into account the realities of conducting a search of personnel records: one has to search a whole drawer of records to try to find the one that relates to the person arrested or who is liable to arrest. It is impractical—I would say impossible—not to search through other records to try to find the record one wants. It is highly unlikely that the records of the suspected offender will be kept separately from those of other employees.
If a constable or immigration officer is searching for the records of that employee, he or she must of necessity have to search through the records of all employees. If, in the course of that search, the constable or immigration officer comes across evidence of other immigration employment offences or evidence of NASS fraud, that person cannot simply ignore it. That would be absurd. He or she needs to be able to seize and retain that evidence immediately. That is what the clause allows.

§ Mr. Vaz
I understand what my hon. Friend is saying, but it sounds a bit like a fishing expedition. The hope is that looking at other records might mean that other offences are discovered. Can she assure me that the records will be returned as soon as possible after the person involved has been dealt with?

§ Beverley Hughes
It is not a fishing expedition. I am simply making the point that seeking the employment records of a person who has been arrested or is liable for arrest because he is a suspect inevitably means that a constable must go through a bank of records to see whether the one that he wants is there. In doing that, if records of other people who may be suspected of employment offences come to light, that fact cannot be ignored.
The Government amendments seek to clarify the conditions that relate to this power and that have to be satisfied for a search to be conducted under the new section. Our amendments are perfectly reasonable and understandable. I hope that the House will accept them.

§ Mr. Allan
I shall concentrate on amendments Nos. 74 to 77 and I give notice of our intention to divide the House on amendment No. 74, which deals with an important principle.
We believe that whenever possible there should be prior judicial scrutiny of requests by law enforcement authorities to search for personal information on premises and remove it. We need to strike a balance between the rights of the employer and the other employees. The hon. Member for Leicester, East (Mr. Vaz) referred to a fishing expedition. Our problem is not with those fishing expeditions that are successful because they catch a full haul of fish, but with those that go through the records of innocent fish for no particular reason. People are rightly aggrieved if their privacy is breached when no serious offence has been committed.
949 The rights of the innocent employees whose records may be seized under the provisions and the rights of the employers should be taken seriously. We would, of course, accept advice on who should seek the JP's warrant—the immigration officer and the constable as opposed to just the immigration officer, perhaps. However, without judicial scrutiny there is a serious risk that the powers could be used in an overbearing way.
If the judicial scrutiny element is included in the legislation, we could develop systems that work. That is especially relevant to those cases in which a constable or immigration officer believes that offences are liable to be committed and that employer X is employing people illegally. In those circumstances, there is no reason why they should not go to a magistrate and get authority for a search warrant as they would in many other instances that require law enforcement agencies to have warrants.
An additional safeguard is required. There is a risk that the powers will be used inappropriately if the Bill is left unamended, so we will seek to divide the House on amendment No. 74.

§ Mr. Malins
There is a problem with the clause. Whenever one sees a reference to search warrants, one wants to see a reference to the courts. The Minister will know that when an officer wants to obtain a search warrant for premises on which there are drugs, he goes before a district judge or magistrate, swears an information setting out his reasons for believing that the premises contain drugs and is then examined by the court, which asks for more information and cross-examines him on it. Only when the magistrate or district judge is satisfied that there is a reasonable case does he grant the warrant.
Proposed new section 28FA states: This section applies where … a constable … reasonably believes that a person is liable to arrest for an offence. In the example that I gave of drugs on the premises, there was a possible challenge to the constable's reasonable belief, which would have been made before the warrant was executed by the district judge. However, the Bill makes no provision for the reasonable belief of a constable to be challenged because there can be no prior challenge and a subsequent challenge would effectively be invalid. The Government have to address that dilemma.
The other dilemma that they face has been alluded to: will the proposal result in a fishing exercise? The amendments tabled by the Liberal Democrats attempt to narrow the remit to the employee records of the employee concerned. When the Minister reads Hansard, she will observe that she referred to the importance of "the relevant employee records". In other words, the records should be limited to that employee. She said that one has to search records thoroughly to find the relevant ones, but what distresses me is that all the records of a firm can be searched, removed and acted on because of the reasonable belief of an immigration officer, which is not capable of challenge. That is a big worry.

§ Beverley Hughes
I simply commend the amendment to the House.