Borders, Citizenship and Immigration Bill [HL]

My Lords, Amendments 3, 4, 5, 6, 14, 15 and 63 are related and I will take them together. I shall speak to government Amendments 3, 4 and 5, which are clarifying amendments. We had much debate in Committee about the nature of general customs functions under the Bill. General customs functions include not only the functions exercisable in relation to a general customs matter by the commissioners, but also any functions currently exercisable in relation to those matters by officers of HMRC. Under the Bill, these functions will all come to the UK Border Agency. Clause 1 defines general customs matters as those in relation to which the commissioners of HMRC have functions other than those that concern revenue and other excepted matters set out in Clause 1(2). However, some non-revenue customs functions are conferred on customs officers directly, rather than via the commissioners. Examples include the ability of officers to detain unsafe goods on import under the Consumer Protection Act 1987, in order to allow for their inspection by a trading standards officer, and the ability of officers to detain ships under the Public Health (Ships) Regulations 1979 on behalf of port health authorities. Of course, it could be argued that, by conferring functions on an officer of HMRC, a statute also confers functions on the commissioners, who, by virtue of the provisions in the Commissioners for Revenue and Customs Act 2005, are responsible for directing and supervising the actions of their officers. On balance, though, we think it better to put it beyond doubt that general customs functions include those functions exercisable in relation to general customs matters by the commissioners and by the officers of HMRC, particularly as the term "general customs matter" is also used in Clause 3 to delineate what a designated general customs official may do under the Bill. These amendments simply make it clear that, irrespective of whether a statute confers functions on the commissioners or on their officers, or both, those functions will be fully exercisable by the UK border force in future. The purpose of government Amendment 14 is to clarify that the functions of the commissioners of HM Revenue and Customs, which may be exercised concurrently by the Director of Border Revenue under Clause 7(1), do not include those functions that were formerly vested in the commissioners of Inland Revenue. It is clear from the overall context of the Bill, particularly given that Clause 7 defines customs revenue matters as those relating to taxes for which the former department of HM Customs and Excise was responsible, that we are conferring only customs-related functions on the UK Border Agency in this Bill. However, we need to make it clear that it is only Section 5(2)(b) of the Commissioners for Revenue and Customs Act 2005, which deals with the functions formerly exercised by the commissioners for HM Customs and Excise, that applies to the Director of Border Revenue. The remainder of Section 5(2) relates to the former functions of the Inland Revenue. I hope that noble Lords will agree that these amendments, although they sound complicated, assist in clarifying the functions that may be exercised by the Secretary of State and by the Director of Border Revenue. If the noble Baroness, Lady Hanham, will indulge me, I shall speak to her Amendments 6, 15 and 63 ahead of her. If I understand correctly, the noble Baroness and the noble Viscount, Lord Bridgeman, have tabled a series of amendments that have at their heart the quite legitimate aim of attempting to further clarify exactly which functions will be exercised by the Secretary of State and the Director of Border Revenue respectively. I hope that that is the aim; if I am wrong, I am sure that the noble Baroness will make that clear to me. Unfortunately, the amendments as drafted will not achieve this aim. As I must therefore resist them, I will explain why. We can all agree that the drafting of Part 1 is complex. Amendments 6 and 15 both make reference to the schedule that Amendment 63 proposes, so Amendment 63 provides the real substance of these amendments. As your Lordships can see, Amendment 63 contains two lists: one of customs revenue functions and one of general customs functions. The list of general customs functions included in Amendment 63 attempts to expand on the general functions of the Secretary of State set out in Clause 1. However, the list—I acknowledge that it was supplied to the House by the Government—is far from comprehensive. It was precisely because of the difficulty of drafting a comprehensive list that we have taken the approach that we have in the Bill. The list of customs revenue functions, meanwhile, simply repeats what is already set out in Clause 7(2) of the Bill and is therefore unnecessary. Clause 1 defines the functions to be exercised by the Secretary of State by reference to those functions of the commissioners that she may not exercise. I can understand why noble Lords have raised concerns about this, but a careful look at Clause 1 will show that these concerns are misplaced. Let me explain the Government’s approach. Taking the functions of HMRC as a whole, we have first excluded all the former Inland Revenue’s functions from the definition of general customs functions. We have then excluded any other revenue, duty or tax matter. We have then excluded the functions of the Paymaster-General given to HMRC and the regulatory role of HMRC in controlling money-transfer businesses. Thus the Secretary of State is left with the non-revenue customs, shipping and enforcement functions of HM Revenue and Customs. These are the functions that the commissioners and customs officers exercise in relation to ports and airports, the movement of goods, preventing drug smuggling and the smuggling of other prohibited and restricted goods, and the regulation of trade and shipping. We have not set out each and every relevant function in the Bill because the statutes conferring powers and functions on customs officers are many and varied. It would be a very long list and not one that could sensibly be set out in legislation. I shall give some examples. As noble Lords will no doubt be aware, our customs administration is one of the oldest in the world and, as such, many customs functions date back hundreds of years. The Slave Trade Act 1873 gives customs the power to seize a vessel used for the purpose of the slave trade. The Naval Prize Act 1864 provides for customs to take custody of any ship taken as a prize. The Import, Export and Customs Powers (Defence) Act 1939 gives customs a role in preventing trading with the enemy. The Docking and Nicking of Horses Act 1949—that is clipping their ears, not stealing them, I hasten to add—gives customs a role in preventing the import of horses whose tails have been docked. In more modern times, the Merchant Shipping Act 1995 gives customs a role in ensuring ship safety, requiring production of ships’ documents and detaining ships if necessary. As a naval officer, I mention in particular a very important power relating to shipping. If a ship is flying improper colours, a customs officer may board the ship and seize and take away the colours. I could go on. The Chemical Weapons Act 1996, the Rabies Act 1974, the Explosives Act 1875 and the Salmon and Freshwater Fisheries Act 1975 all give a role to customs in enforcing their provisions. However, I do not believe that there is any need to list them all in the Bill, because all that is left for the Secretary of State, after we have excluded all the revenue and other "inland" work of HMRC, is the appropriate non-revenue customs work. In future, the exercise of all these various functions at ports and airports will be for the border force and not HM Revenue and Customs. I beg to move.