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Lord Berkeley: I am grateful to my noble friend the Minister. I have no intention of entering into a long discussion now; it is one for the summer holidays. I am sure that we will come back to the matter, but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 229 to 231 not moved.]
Lord Filkin moved Amendment No. 231A:
- Page 99, line 31, at end insert—
The noble Lord said: I shall not speak in detail to this and the other minor and technical amendments in the group, unless the Committee requires me to. I beg to move.
On Question, amendment agreed to.
Lord Filkin moved Amendments Nos. 231B to 231H:
brev>Page 100, line 36, leave out from "permission)," to end of line 37.
On Question, amendments agreed to.
Schedule 8, as amended, agreed to.
Clause 109 [Physical data: compulsory provision]:
Lord Bassam of Brighton moved Amendment No. 232:
The noble Lord said: Amendments Nos. 232 and 233 will amend Clause 109(4)(e) and (f) to enable the Secretary of State to specify modifications to a code
Amendment No. 234 deletes subsection (10) of the clause. Clause 109(10) refers to a clause on deemed applications for asylum which has been removed from the Bill. Clause 109(10) is therefore no longer required. I beg to move.
Baroness Anelay of St Johns: I hate to break into the party and be the first to ask questions on government amendments, but I want to raise a couple of matters. I recognise that a similar provision in Section 145(3) of the 1999 Act modifying the effect of a code of practice under PACE already exists. However, can the Minister tell the Committee what kinds of modifications have been made to the PACE code under that provision and whether similar modifications will be made as a result of the amendment?
Clause 109(9) defines the term "code", to which these amendments relate, by giving it the same meaning as in Section 145(6) of the 1999 Act; namely, a code of practice under PACE or the Police and Criminal Evidence (Northern Ireland) Order. However, as the Minister is aware, Section 145(7) states that Section 145 does not apply to anything done in Scotland. As always, I have in mind my noble friend Lady Carnegy of Lour. There is no reference in Section 145(6) to a code in respect of Scotland. Will the Minister tell the Committee what codes will apply to regulate the conduct of persons taking data for immigration purposes in Scotland under the regulations made under Clause 109?
Lord Bassam of Brighton: I will cover some of the points in the longer speaking notes provided for the clause. The data which may be required extend to external physical characteristics, including features of the iris. The clause supplements the power to fingerprint and gather data from individuals as contained in Sections 141 and 146 of the Immigration and Asylum Act 1999. The regulations made under the powers contained in the clause closely mirror those contained in the 1999 Act.
The amendments are based upon the power of the Secretary of State to require compliance with specified provisions of the code which is contained in Section 145 of the 1999 Act. Under sections of that Act, the Secretary of State may require authorised persons to have regard to specified provisions of the code and to specify by direction modifications to those provisions for this purpose when collecting fingerprints under Section 141 of the 1999 Act.
The noble Baroness asked some helpful questions. She asked whether modifications will be the same as under the 1999 Act. I have made plain that they will be the same. Mindful of the noble Baroness, Lady Carnegy of Lour, the noble Baroness asked about Scotland. Of course we must always be mindful of the position in Scotland. It might be better if I undertake
Baroness Anelay of St Johns: I am happy for the Minister to write to me about a point that strikes me, as someone born in England, as a technical point. However, for those in Scotland it is quite rightly an extremely important issue. We must bear that in mind. The Committee will know from interventions made by my noble friend Lady Carnegy on previous occasions that there have been one or two slips in the Bill in this regard. It is important to ensure that it is correct. I do not expect the Minister to provide me with a full answer tonight.
Lord Bassam of Brighton: I am grateful to the noble Baroness. I had not intended to provide one, but I shall do so at a later date.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 233:
On Question, amendment agreed to.
The Chairman of Committees (Lord Tordoff): In calling Amendment No. 233ZA, I should point out that if the amendment is agreed to, I shall be unable to call Amendment No. 233ZB due to pre-emption.
Lord Avebury moved Amendment No. 233ZA:
The noble Lord said: With the permission of the Committee I should like to suggest that I speak also to Amendments Nos. 234A and 234B because they all concern the provision of personal information under Clauses 109 and 110, which the noble Lord has just helpfully outlined. Perhaps I may pursue that explanation in a little more detail.
The clauses here provide respectively a compulsory and a voluntary scheme for the provision of physical data already described by the noble Lord, including iris recognition data, a fairly new technique which has proved to be even more reliable than fingerprinting in enabling an individual to be recognised.
Under the compulsory scheme, physical data may be required from an individual making an application under the immigration laws. Those physical data include external physical characteristics including, for example, the features of the iris. The physical data may then be retained and used for any other purpose, including non-immigration purposes.
Under the voluntary scheme set out in Clause 110, physical data may be supplied by a person in connection with his entry into the United Kingdom. I gather that it was envisaged that such data would be used for the fast-tracking of particular applicants who travel frequently to the United Kingdom. The noble Lord may be able to say something about the
Can the Minister also say something about the charging aspect? Provision has been made to set charges. We should like to know how it is intended to operate and whether it will be entirely at the expense of the individual traveller or whether the airlines will make a contribution to the scheme.
As I have said, what is objectionable is that the physical data collected about an individual under the compulsory scheme may be used for purposes that have nothing to do with immigration. This power is far too wide and the Secretary of State has been unable to justify its use, given the serious implications for data protection. That is why we suggest the deletion of Clause 109(4)(g).
The clauses refer to codes which the Secretary of State may lay down in relation to the taking of physical data. Those are codes of practice made under Section 145 of the Immigration and Asylum Act 1999. However, those codes refer only to fingerprints while the new codes will be extended to embrace a wider range of physical data. We consider it essential that the Secretary of State should consult with the relevant organisations, but we do not seek to impose any particular restriction on the use of his discretion as regards with which organisations he will consult. However, the code of practice should be made by order and laid before Parliament. I beg to move.
"( ) for "given" substitute "issued","
Page 100, line 17, leave out "(whether or not he owns it)" and insert—
"( ) A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it.
( ) But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—
(a) is the owner or hirer of the vehicle, or
(b) is, or was when the penalty notice was issued, an employee of the owner or hirer of the vehicle."
Page 100, line 29, at end insert—
"( ) In subsection (2) for "claiming an interest in the transporter," substitute "whose interests may be affected by detention of the transporter,"."
Page 100, line 31, at end insert—
"( ) After subsection (3) insert—
"(3A) The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—
(a) a penalty notice was not issued to the owner or an employee of his, and
(b) the court considers it right to release the transporter.
(3B) In determining whether to release a transporter under subsection (3A) the court shall consider—
(a) the extent of any hardship caused by detention,
(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature)."
Page 101, line 2, after "unlawful" insert "or under subsection (3A)"
Page 103, leave out lines 4 and 5 and insert—
"(3) An appeal under this section—
(a) shall be a re-hearing of the Secretary of State's decision to impose a charge, and
(b) may be determined having regard to matters of which the Secretary of State was unaware.
(4) Subsection (3)(a) has effect despite any provision of Civil Procedure Rules."
Page 103, line 34, leave out paragraph 16 and insert—
"(1) Schedule 1 (sale of transporter) shall be amended as follows.
(2) In paragraph 1(2)(a) omit "or charge".
(3) After paragraph 2 insert—
"2A. Where the owner of a transporter is a party to an application for leave to sell it, in determining whether to give leave the court shall consider—
(a) the extent of any hardship likely to be caused by sale,
(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature)."
(4) In paragraph 5(2)(d) omit "or charge"."
Page 57, line 31, at end insert "(with or without modification)"
Midnight
Page 57, line 33, after "code" insert "(with or without modification)"
Page 57, line 34, leave out paragraph (g).
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