UK Borders Bill

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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.
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.
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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.
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

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.
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.
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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.
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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