Inspection and oversight
Section 28: Inspections by the Chief Inspector of the UK Border Agency
120.Sections 28(1) and (2) make amendments to section 48 of the UKBA 2007 which established a single independent inspectorate for the Border and Immigration Agency. Subsection (1) substitutes a reference to “the UK Border Agency” for the reference to “the Border and Immigration Agency” in section 48(1) of the 2007 Act. Subsection (2) inserts a new subsection (1A) into section 48 which specifies that the functions of the Chief Inspector apply to the efficiency and effectiveness of the performance of functions by designated customs officials, immigration officers and officials of the Secretary of State exercising customs functions or functions relating to immigration, asylum or nationality, the Secretary of State in so far as the Secretary of State has general customs functions or functions relating to immigration, asylum or nationality, the Director and any person exercising functions of the Director.
121.Section 28(3) makes further amendments to section 48 of the UKBA 2007 consequential on the changes made in subsections (1) and (2). It also makes provision to require the independent Chief Inspector to monitor and report on (i) UKBA’s practice and procedure in relation to criminal matters, both immigration- and customs-related, and (ii) whether customs functions are being appropriately exercised by the Secretary of State and Director of Border Revenue. Section 28(4) also inserts the new subsection (2A) into section 48 of the UKBA 2007 which sets out the functions that will not fall within the remit of the Inspector unless directed to do so by the Secretary of State.
122.Section 28(5) to (9) makes further consequential amendments and section 28(10) enables the Chief Inspector of the Border and Immigration Agency to be treated immediately when this section comes into force as if appointed as the Chief Inspector of the UK Border Agency.
Section 29: Inspections by Her Majesty’s Inspectors of Constabulary etc.
123.Section 29(1) provides that the Secretary of State may make regulations conferring functions on Her Majesty’s Inspectors of Constabulary, the Scottish inspectors or the Northern Ireland inspectors in relation to designated customs officials and officials of the Secretary of State exercising customs functions, immigration officers, and officials of the Secretary of State exercising functions relating to immigration, asylum or nationality, the Secretary of State in so far as the Secretary of State has general customs functions and functions relating to immigration, asylum and nationality, the Director and any person exercising functions of the Director, and anyone providing services relating to the discharge of functions by any of these persons.
124.The inspectors to whom section 29 applies already have functions conferred on them in existing legislation and subsection (2) provides that regulations made under subsection (1) may apply, with or without modification or make provision similar to (a) in the case of Her Majesty’s Inspectors of Constabulary sections 54 to 56 of the Police Act 1996, (b) in the case of the Scottish inspectors section 33 or 34 of the Police (Scotland) Act 1967 and (c) in relation to the Northern Ireland inspectors section 41 or 42 of the Police (Northern Ireland) Act 1998.
125.Subsection (3), (4), (5) and (6) of section 29 establish the framework, to be provided for in the regulations, for the commissioning and carrying out of inspections, for the reporting of their results and for the making of payments for the inspections. Subsection (3) provides that the regulations may enable a Minister of the Crown to require an inspection to be carried out; that regulations must provide for a report of an inspection to be made and, subject to any exceptions required or permitted by the regulations, published. Regulations must also provide for an annual report to be made by Her Majesty’s Inspectors of Constabulary. Finally, regulations may make provision for payment to or in respect of the inspectors mentioned in subsection (1).
126.Subsection (4) provides that an inspection carried out by virtue of this section may not address a matter of a kind which the Comptroller and Auditor General may examine under section 6 of the National Audit Act 1983 (the examination of public bodies in respect of economy, efficiency and effectiveness in the discharge of their functions). Subsection (5) requires that an inspection carried out by virtue of this section must be carried out jointly by Her Majesty’s Inspectors of Constabulary and the Scottish inspectors if the inspection is carried out wholly in Scotland or, in a case where it is carried out partly in Scotland, to the extent that it is carried out there. Subsection (6) defines “the Scottish inspectors” and “the Northern Ireland inspectors” for the purpose of this section.
Section 30: Complaints and misconduct
127.Sections 30(1) to (3) amend section 41 of the Police and Justice Act 2006 (power to confer functions on the Independent Police Complaints Commission (“the IPCC) in respect of the exercise of immigration and asylum functions), to expand the functions which the Secretary of State may confer on the IPCC. The amendments provide that the IPCC may carry out investigations in relation to the exercise of specified immigration and asylum enforcement functions by contractors and in relation to the exercise of customs functions by (a) designated customs officials and officials of the Secretary of State, (b) the Director and any person exercising functions of the Director and (c) contractors providing services pursuant to arrangements relating to the discharge of the functions referred to in (a) or (b). The functions may be conferred on the IPCC by the Secretary of State making regulations under the existing provision in the Police and Justice Act 2006, as amended by this section.
Section 31: Prosecution of offences
128.Section 31 enables the Attorney General to assign functions to the Director of Revenue and Customs Prosecutions to institute and assume the conduct of prosecutions in England and Wales and to provide advice relating to criminal investigations carried out by the persons specified at subsection (2), namely, designated customs officials, immigration officers, officials of the Secretary of State, the Secretary of State, the Director, a person acting on behalf of any of those persons and constables. Subsection (1) provides an order-making power to enable the Attorney General to assign functions to the Director of Revenue and Customs Prosecution. Subsection (1) also sets out the functions that may be assigned by the Attorney General. These are the functions of instituting or assuming the conduct of criminal proceedings in England or Wales, or providing legal advice.
129.Subsection (3) ensures that the provisions of the CRCA 2005 relating to the exercise of the functions of the Director of Revenue and Customs Prosecutions apply also to the exercise of functions conferred by section 31. Subsection (4) applies the prosecutor functions in respect of charging decisions contained in section 37 to 37B of PACE to the functions exercised by the Director of Revenue and Customs Prosecutions under section 31. Subsection (5) provides that an order under section 31 may include incidental, supplementary and consequential provision, may make transitional or transitory provision or savings, or may be amended or revoked. Subsection (6) provides that the reference in section 31 to instituting criminal proceedings is to be construed in accordance with section 15(2) of the Prosecution of Offences Act 1985. Subsection (7) specifies the meaning of “criminal investigation” for the purpose of this section.
Section 32: Payment of revenue to the Commissioners
130.Section 32 requires the Director (subsection (1)) and the Secretary of State (subsection (2)) to pay to the Commissioners any money received by way of revenue or security in the exercise of, as regards the Director, customs revenue functions and, in relation to the Secretary of State, general customs functions. Subsection (3) provides that any such payment by the Director or Secretary of State must be made at such times and in such manner as the Treasury directs and after deductions of payments in connection with drawback and repayments.
131.Subsection (4) provides that, should they consider the funds available to the Director or Secretary of State insufficient to cover any payment due in connection with drawback or repayment, the Commissioners may pay money to the Director or Secretary of State as applicable to enable the necessary payment or repayment to be made, or may themselves make a payment or repayment on behalf of the Director or the Secretary of State. Subsection (5) provides that subsection (4) will apply whether or not the reason for the deficiency is or may be that an amount has been paid or retained on the basis of an estimate that has proved or may prove inaccurate.
132.Subsection (6) provides that a payment by the Commissioners under subsection (4) is to be treated for the purposes of the CRCA 2005 as a disbursement of a kind specified in section 44(3) of that Act. Section 44(3) of the CRCA 2005 covers the arrangements for payment by the Commissioners into the Consolidated Fund and provides that such payment should be made after the deduction of any disbursements covered by section 44(3). Subsection (7) provides definitions of the terms “repayments”, “revenue” and “security for revenue” for the purposes of section 32.
Section 33: Power to require payment into the Consolidated Fund
133.Section 33(1) makes provision for an order-making power to enable the Treasury to direct the Secretary of State or the Director to pay the money received in the exercise of their customs functions into the Consolidated Fund and to require the Secretary of State or Director to provide accounts of the receipt and disposal of revenue. The order may also permit the deduction of disbursements before such payments are made and permit the Treasury to make payments out of the Consolidated Fund, to enable the Secretary of State or the Director to make disbursements.
134.Section 33(2) provides an order-making power to amend or repeal section 32. It is intended that the Secretary of State and Director will collect revenue but pay those monies directly into the Commissioners’ accounts in accordance with section 32. The Commissioners will be responsible for accounting for the monies received by the UK Border Agency and reports to the Comptroller and Auditor General in respect of accounting for those receipts. However, should circumstances change and the Secretary of State and Director begin to run their own accounts this order making provision provides flexibility for the monies they collect to be paid directly into the Consolidated Fund rather than through the Commissioners’ accounts.
Section 34: Children
135.Sections 34(1) to (5) amend section 21 of the UKBA 2007 to apply the Code of Practice regarding children’s welfare introduced in that section to specific individuals. Those individuals are named in the new section 21(4A), inserted by section 34(3). Subsections (2), (4) and (5) of section 34 further amend section 21 to reflect the replacement of the Border and Immigration Agency with the UK Border Agency.
136.Section 34(6) provides for section 34 to cease to have effect when section 57 comes into force.
