Clause
8
Use
and retention of
information
Paul
Rowen (Rochdale) (LD): I beg to move amendment No. 81, in
clause 8, page 5, line 26, leave
out from ‘information’ to end of line 27 and
insert
‘by authorised
persons for any matter relating to immigration, nationality, terrorism
or
money-laundering.’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 23, in clause 8, page 5, line 27, after
‘purposes’, insert
‘in accordance with, and for the
purposes of, another enactment.’.
No. 62, in
clause 8, page 5, line 27, at
end insert
‘but
provision must be restricted to matters relating to terrorism, serious
organised crime, money laundering and serious
fraud’.
Paul
Rowen:
Having last week discussed biometric data, we move
on to the use to which they can be put and their retention. Amendment
No. 81 would alter subsection (2), which is broad and gives the
Secretary of State sweeping powers to use information for absolutely
anything. Specifically, it states clearly that information may be used
for a purpose that does not relate to immigration. Since this is the UK
Borders Bill and the Committee is principally concerned with securing
our borders, we feel that that notion is far too broad.
The amendment is intended to
get the Minister to be a little more specific. We suggest that
information be used in connection with immigration and
nationality—that is what the Bill is about—and in
connection with any issue to do with terrorism, on which there is
clearly a need to share information. We do not want to do anything that
would tie the hands of the security services. In fact, we hope that one
of the consequences of the Bill will be greater co-operation. We also
include money laundering, because if there is drug or human trafficking
going on we want it to be possible for information to be shared. Later
amendments would also deal with that. We seek to be helpful and
specific by saying what information should be used for instead of
having the broad catch-all notion in the
clause.
The amendment
is a probing amendment so that we can hear from the Minister what his
intentions are. Having heard the concerns expressed in our evidence
sessions, we need to ensure that the information collected is used for
the right purposes. It is good practice for bureaucracies to be clear
about why they are collecting information and what it is used
for.
Damian
Green:
I shall speak to the amendments in my name,
amendments Nos. 23 and 62. Broadly speaking, they are intended to
achieve ends similar to those of amendment. No. 81, which the hon.
Member for Rochdale has just moved. We too have worries about the wide
powers that regulations could give to Ministers, permitting the use of
information for specified purposes that are not related to immigration.
The clause is extremely open-ended and will entitle the Government to
use information for any purpose they wish.
The point of amendment No. 23
is to stop fishing expeditions. With the Government seeking to
introduce an era in which more and more pieces of personal data are
held on more and more databases, the dangers of such expeditions become
ever greater. We therefore seek to limit the use of the power to
circumstances that are already enshrined in legislation and have been
discussed, at least in some form, by Parliament. The amendment would
limit the scope of information to purposes that are set out in statute
by another enactment, so the open-ended fishing expedition would not be
a possibility.
We
have not had any explanation from Ministers—perhaps we will in a
few minutes—of the purposes for which the Government would
collect and use the information. As the hon. Member for Rochdale said,
it
is possible to envisage circumstances in which such information would be
useful to law enforcement agencies. I am not saying that it would not
be useful; clearly that would be wrong, but we believe that Parliament
should be told of the purposes for which the information may be used.
There is already adequate scope in existing legislation, under which
Parliament has considered what is reasonable in this area. Amendment No. 62 is similar to
amendment No. 81. It provides a list. The Government should have good
reason to use for any other purposes data that are gathered for
immigration purposes. The amendment lists activities that are dealt
with by SOCA, which the Government have already decided are
particularly serious and which would cause little controversy between
hon. Members on Opposition and Government Benches. The amendment would
help the Government to reassure the public that the Bill is not about
giving the Government a free ride in collecting data and using them as
they wish, but that they would use them in only the most serious
circumstances where there is a clear public benefit from doing
so.
It would help the
Minister’s case to accept the amendments; he would have wide
support for the use of the powers created for the immigration system to
stop international, serious, organised crime. He will have much less
support if there is public suspicion that he or any of successors will
be able to use the powers for an as yet unspecified purpose, of which
many members of the public might not approve. The amendments would
strengthen the Bill by providing a degree of public reassurance that it
is not there at the moment, because the clause is so
open-ended.
Mr.
Byrne:
These are helpful amendments, because they have
given me pause for thought and deliberation. I shall start by
clarifying the scope and orbit of the clause. It is not about the
transfer of the information concerned to other parts of Government or
other parts of public service. Parliament has already spoken on that
matter, specifically in section 21 of the Immigration and Asylum Act
1999, which quite properly put in place a rigorous gateway through
which the Home Office would have to go to share information with
others. That could be done only in line with obligations already on the
Secretary of State set out under the Human Rights Act 1998, the Data
Protection Act 1998 and other
legislation.
11.45
am
The subject of
the clause is how the Home Secretary can share the information with
other parts of his business, as it were. How can we ensure that that is
not being done inappropriately? Amendment No. 23 would curtail the
movement of information to the purposes set out in another enactment.
Amendments Nos. 62 and 81 would constrain the use of the information
for non-immigration purposes. A helpful starter for 10 has been
listed.
I said last
week that the purpose of the Bill was not to give unfettered power to
the Secretary of State. I know that there are some days when that seems
desirable, but in the round it is not. It is important to underline the
fact that, even if that were the ambition, it would be a forlorn
ambition, because the Secretary of State does not have unfettered power
to share
information even with other parts of his own operations. The Human
Rights Act and the Data Protection Act already provide for certain
constraints. Despite
the fact that those constraints are in place, there is a case to be
explored for whether further constraint is merited. The amendment has
prompted me to begin that exploration. We have to think carefully
through a number of issues, the first of which is that amendment No. 23
suggests that the sharing and use of the information be curtailed to a
purpose set out in another enactment. That is a valuable place at which
to start, but a couple of issues warrant slightly further exploration.
Some of the Home Secretary’s powers are exercised under royal
prerogative, not under “another enactment”. A good
example is the fact that the Secretary of State issues British
passports under prerogative to several different types of nationality,
including British overseas territories citizenship, British national
overseas, British subject and British protected persons. It is possible
to envisage a situation in the future when the Home Secretary would
want to check biometric information that had been filed as part of a
biometric immigration document application, as part of the process of
reviewing someone’s application for one of those three or four
different categories of passport. That would not be possible under the
amendment, because it is a power exercised under royal prerogative, and
issuing a passport is not in the strict legal sense an immigration
function.
The second
issue that needs teasing out is that the phrase “another
enactment” may exclude the use of the information under clauses
1 to 4. Given that the phrase used is “another
enactment”, it may be that under a strict legal definition, it
is not possible for the application to be rendered to the Bill. That
would need to be teased through with
lawyers.
The third
issue that warrants a little exploration is particularly relevant to
amendment No. 62. The proposed list does not mention nationality, but
it is possible to envisage a situation in which we want to make use of
biometric immigration that has beenfiled as part of a
biometric immigration document application during the naturalisation
process. We might want to validate the individual who is applying for
naturalisation and use biometric information that has already been
filed and checked.
The
fourth issue that needs a little more explanation—I hope the
Committee will agree—is in the list of applications, which has
been helpfully set out in the spirit of probing our ambitions. The list
does not refer to prevention of crime. Immigration
officershave a number of criminal investigation powers. They
might, for example, investigate crimes of forgery, bigamy, theft and
perjury. With such criminal investigation powers come associated powers
of arrest, search and investigation. It is quite possible that an
immigration officer would seek to use biometric information that has
been captured as part of the application process for the biometric
immigration document. One can particularly imagine that such a facility
might be useful where forgery offences were being
investigated.
The
amendments are therefore extremely helpful, as there is a real case for
us to explore how the Bill should be more specific about the limits on
the Secretary of State’s power to deploy the information in
other parts
of his business. With those words on the record, I hope that the hon.
Member for Rochdale will not seek to press the amendment. These have
been helpful probing amendments that have certainly started the process
of deliberation in my office. Where and if appropriate, I think that we
will need to table an amendment of our own to achieve the ambitions
that hon. Members rightly
have.
Paul
Rowen:
With those remarks, I look forward to the new
provisions from the Government, and I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause
8 ordered to stand part of the
Bill.
Clause
9
Penalty
Mr.
Jackson:
I beg to move amendment No. 4, in
clause 9, page 6, line 12, leave
out ‘£1,000’ and insert
‘£5,000’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 63, in
clause 9, page 6, line 12, leave
out ‘£1,000’ and insert
‘the maximum fine on level 3 of
the standard
scale.’.
No.
83, in
clause 9, page 6, line 13, leave
out ‘14’ and insert
‘28’.
No.
5, in clause 9, page 6, line 13, after ‘days’, insert
‘and not more than 28
days’.
No. 64,
in
clause 11, page 7, line 19, leave
out paragraph
(b).
Mr.
Jackson:
In the absence of my hon. Friend the
Member for Monmouth, I shall not speak to the
amendment.
Damian
Green:
My hon. Friend the Member for Monmouth, who is not
here to move his own amendment, is doing his last duty in the Welsh
Assembly, where he has been a distinguished Member for some time. He is
standing down at the current elections, but he is there today for the
last time. He has many talents, but not being in two places at
once.
Mr.
Byrne:
It is their
loss.
Damian
Green:
Absolutely. Their loss is the Westminster
Parliament’s
gain.
Amendment No. 4
and my amendment No. 63 and consequential amendment No. 64 seek to do
similar things in proposing to alter the maximum level offine.
The Minister had kind words to say about the helpfulness of the
previous amendments on clause 8. Amendment No. 63 is also designed to
make the Bill more flexible. If the Government’s current
proposal stood, the Secretary of State would constantly have to review
the appropriateness or otherwise of the £1,000 fine in this area
and with regard to this legislation. Immigration Bills, like buses,
come along regularly under this Government, but we cannot always assume
that that will be the case. The inflexibility of a
straightforward fine seems to us less sensible than simply putting the
maximum fine on level 3 of the standard scale, which would also have
the small but significant benefit of bringing the penalties in the Bill
into line with other offences and legislation where the standard scale
is used. As I said, amendment No. 63 is designed to help the
Minister. Amendment
No. 64 would remove reference to the Secretary of State’s
decision in relation to appeals held in court. Since amendment No. 66
has not been selected, the amendment sits slightly oddly on its own,
but I am sure that we will be able to return to it, perhaps in a debate
on clause 10.
I hope
that the Minister will take amendment No. 63 in the intended spirit,
which is to make the Bill more flexible and possibly in some small way
reduce the burden of future legislation that the House has to
pass.
Paul
Rowen:
I support the comments of the hon. Member for
Ashford. I believe that it is important to future-proof with some
flexibility. The amendment standing in my name proposes quite a small
addition to that flexibility. It seeks merely to increase from 14 days
to 28 the period in which someone must pay a fine. If we are going to
increase the maximum fine to take account of the severity of the
offence, a small increase in the length of time in which people have to
pay the penalty is quite in order.
Mr.
Byrne:
I always look extremely sympathetically on
amendments that seek to unfetter the Secretary of State or lift the cap
on the powers that we are seeking. As a result, I look very
sympathetically on proposals that seek to increase the civil penalty
cap from £1,000 to £5,000, while the effect of subsequent
amendments in the name of the hon. Member for Ashford would be to
replace the £1,000 cap with a level 3 fine. I was grateful for
his clarification of amendment No. 64. I agreed that the effect of that
amendment sat oddly here; as it is drafted, and in the context in which
it is put, the court would not have to hear an appeal against an
objection notice. It appears to seek to remove appeal rights if the
Secretary of State has changed his or her decision in the face of an
objection. That is one interpretation of how the amendment can be read,
but it is a bit unclear and now I understand why, thanks to his helpful
clarification. Amendment No. 83, however, would ensure that payment
could not be sought until after 28 days had passed. I was not quite
sure whether that was the purpose of the amendment.
I want to reassure the
Committee on four points. We seek to designate biometric immigration
documents once the national identity system is up and running. We are
trying to align the civil penalty regime with the penalty regime that
was proposed and passed by Parliament under the Identity Cards Act
2006. We did not want a separate scheme in which there would be one
kind of civil penalty for non-compliance under the 2006 Act and another
that would kick in under the Bill’s biometric immigration
document provisions. We therefore wanted to provide a civil penalty
regime that was aligned with that
approach.
We set the
fine at £1,000 because we thought that that was sufficient. We
looked quite closely at whether a greater level of fine was wise. The
reassurance that I
would give is that that fine is not the only
sanction that is available to the Secretary of State. There are a
number of other sanctions, which for foreign nationals may be much more
significant. For example, the power to curtail leave, vary leave and
refuse an application are important sanctions that can be invoked if
the £1,000 penalty is not thought
sufficient. The
reference to level 3 would introduce a degree of legal complexity into
the equation. Level 3 works on a points scale in the criminal offences
regime, but we are seeking to put in place a civil penalty regime. A
degree of legal confusion might therefore arise, and we do not think
that a criminal offences regime would necessarily include the right set
of sanctions. We think that the civil penalty regime is the right
approach.
12
noon
From the
thrust of the remarks of the hon. Member for Ashford, I detected that
his ambition is that the Secretary of State should not have to come
back to the House constantly to update the civil penalty regime and the
level of fines in place. The important reassurance is that under clause
9(6), the Secretary of State is empowered to make
amendments
“to reflect a
change in the value of
money.”
I hope that those
reassurances are
helpful.
Damian
Green:
I take the point about clause 6, although that
provision reflects only a change in the value of money and not other
circumstances such as the relative level of offences. However, I am
puzzled why the Minister says that civil penalties are more appropriate
than criminal ones. Anyone who falls under the provisions of the clause
will think that they have committed a crime—it is a statute
enacted by Parliament and enforced by the authorities. That sounds much
more like a criminal offence than something for civil legal procedures.
I am puzzled why he thinks that the latter is more
appropriate.
Mr.
Byrne:
I would not rest my case on that point. It is just
a point to note that we are seeking to put in place a civil penalty
regime in which civil financial penalties, rather than fines, are
incurred. A reference to a fairly well established regime of sanctions
set out in criminal law might be a source of confusion. However, as I
said, I do not want to overstate the significance of that point. The
nub of my argument is that if we accepted the amendments, we would
introduce a degree of dissonance between the civil penalty regime under
the 2006 Act and that under this Bill, which would be unhelpful,
particularly once the cards are designated.
A second key point is that we
think that the sanctions provided for are sufficient because the Home
Secretary has recourse to others should people persist with
non-compliance. I take the point made by the hon. Member for Ashford
about changes in the scale of seriousness, but the key points are
whether we can adjust the level of the civil penalty in line with
changes in the value of money and whether other sanctions are available
if people persist with non-compliance—yes, those are available.
That is what will be effective in driving
compliance.
That
is the bottom line in the debate on the amendments before us. How do we
encourage maximum compliance? I welcome what I detect is support from
Opposition
Members for the broad thrust of the measures—the introduction of
compulsory ID cards for foreign nationals and ensuring compliance with
the regime. However, I think that the sanctions in place, beginning
with civil penalties but with recourse to variations or curtailment of
leave, are appropriate and will be
effective.
Mr.
Jackson:
Given the undertakings that the Minister has
given to the Committee, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 9 ordered to stand
part of the Bill.
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