Another Home Office power-grab?

This bill would create customs officials more powerful than the police – and they would be under direct political control

Maybe you missed it. This week, moved from its original appointed date, the Lords held the second reading of what would be the sixth immigration act in a decade: the borders, citizenship and immigration bill. You might well have heard of some of the proposals involved, because the government has made a song and dance about the fatuous concept of making new citizens earn their naturalisation by doing officially approved community activities.

What almost nobody has noticed, and which was not made public until the bill was printed, is that the Home Office is to be enabled to appoint a new class of officials, with powers greater than the police, who are directly under political control. Can that be right? After all, didn’t Jack Straw say in relation to the Damian Green affair:

We are not in a police state. A police state would be where ministers were directing a police operation.

It has been made clear time and again – or at least whenever any embarrassing errors are made – that the home secretary does not control police forces. HM Revenue & Customs are insulated from political intervention in the exercise of its powers by being a non-ministerial department. It is accepted that they should not be used in pursuit of political policy. And yet …

Part I of the new bill sets out how the home secretary may appoint an immigration officer or any other Home Office official as “a general customs officer”, without revenue collection functions, but with all the powers of one of Her Majesty’s customs officers, and (cl 5):

A general customs official must comply with the directions of the Secretary of State in the exercise of functions in relation to a general customs matter.

Customs officers have enormous powers. They can arrest people, search and seize property on suspicion, and recently acquired the capacity to take fingerprints and DNA. They can (like police) seize cash under the Proceeds of Crime Act 2002, and demand the owner prove it was acquired lawfully. They have surveillance powers from the Regulation of Investigatory Powers Act 2000, and data-acquisition and sharing powers under the Identity Cards Act 2006, UK Borders Act 2007, and Serious Crime Act 2007. They have resort to “writs of assistance“, an ancient form of arbitrary search specifically outlawed in the US constitution. And under the Finance Act 2008, schedule 36, there are new information gathering powers, yet to be activated, which arguably broaden and build upon even that.

If the home secretary had openly resolved to create a new national police force – call it the national identity police – equipped with the same powers as the Dorset constabulary, say, but reporting directly to her and used for the enforcement of departmental policy there would be, if not public outrage, certainly public interest. I doubt the existing police would be pleased to be so usurped.

But what’s being done here, ostensibly in order to create a “combined border force”, is actually more dangerous than that. It’s a super-powered, semi-secret police, calculated partake of the renowned charm of the immigration service. There’s no provision for general customs officials to be identified or even distinguished from other Home Office officials, nor do they appear to have any specific duties associated with their powers, except to obey the secretary of state.

We’re not living in a police state. But by Jack Straw’s definition, we might soon be living in a general customs official state.

That they’re not HMRC officers, but Immigration Service and other Home Office officials designated by the Home Secretary to assume the powers of HMRC officers.

The Bill: http://www.publications.parliament.u…4.html#j003bor

House of Lords Explanatory Notes to the Bill

Essentially what they’re doing is reallocating some of the non-revenue customs functions of the HMRC to the new UK Border Agency (which is an Executive Agency of the Home Office rather than the Treasury) and this Bill enables the UKBA to continue to use HMRC powers in that role.

Of itself, that may not be such a problem, other than the Home Office is perhaps more easily swayed by political considerations than the Treasury. The Bill, in subsection 3 (4) has the following protective provision

(4) If a function within subsection (2) is exercisable—

(a) in relation to a general customs matter, and
(b) in relation to any other matter,

the function is exercisable by a general customs official in relation to the general customs matter only.

There’s a list of what may be considered a general customs matter referred to elsewhere.

However, what is of greater concern to me, and is not mentioned in the article is Section 2.

2 Power of Secretary of State to modify functions

(1) The Secretary of State may by order—

(a) amend section 1(2) (matters that are general customs matters) so as to
add, modify or remove a matter;

(b) amend that section so as to exclude its application in relation to a function of the Commissioners for Her Majesty’s Revenue and Customs or to modify or remove a reference to a function previously so excluded;

(c) make provision for that section to apply in relation to a function
conferred on the Commissioners by an enactment passed or made after
the end of the session in which this Act is passed;

(d) modify any enactment (including an enactment passed or made after
the passing of this Act) in consequence of provision made under any of
paragraphs (a) to (c).

As far as I can tell, this allows the Home Secretary to decide by order that any matter may be included as a ‘general customs function’ The Bill carefully defines what a ‘general customs function’ is (thereby limiting the application of the powers of these Home Office officials) and then allows that definition to be changed at will – littering in the street?

Furthermore, my reading of this is that the Home Secretary is able to make an amendment by order (Statutory Instrument presumably) to any piece of legislation!

Didn’t we have this battle over the Legislative and Regulatory Reform Bill a couple of years back?

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