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Baroness Anelay of St Johns: I rise to speak to Amendments Nos. 233ZB, 233A and 233B in this group, which stand in my name. The amendments seek to expose the issues underlying the compulsory provision of physical data. As the noble Lord, Lord Avebury, has covered many of the points in relation to the first and third of my amendments, I shall confine my remarks to Amendment No. 233A.

I was grateful when the Minister indicated to me earlier today that the Government will now put their name to the amendment and accept it. I indicated to the Minister that I would explain why I had tabled the amendment in the hope of saving him from having to give his own justification for accepting it.

It is often the case that members of these Benches will seek to change a statutory instrument from negative to affirmative resolution as a matter of principle because we consider that the Government should justify their actions and thereby provide better scrutiny. That argument underlies the amendment, but there is far more to it than that.

The Committee will have read the report of the Select Committee on Delegated Powers and Regulatory Reform. Paragraph 14 of that report states:

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    extends to 'all physical characteristics'. The Committee is not persuaded by the arguments in paragraph 185 of the Memorandum that negative procedure is appropriate here and suggests that the House may wish to consider whether this significant power should be subject to affirmative procedure".

I understand that the reference to paragraph 185 is a misprint and that the reference should be to paragraph 174 of the Home Office memorandum.

That paragraph states the Home Office's view that,

    "The negative resolution procedure is considered appropriate because these regulations will closely mirror the provisions of sections 141 to 143 of the 1999 Act, which have been subject to full scrutiny of the House. They are not believed to be so wide as to necessitate an affirmative resolution procedure".

I am grateful to the Minister for his indication that the Home Office's view has now changed. The argument at paragraph 174 of the memorandum was, if I may say so, a less than adequate justification of the negative resolution procedure for the regulation-making powers sought in Clause 109. Indeed, the negative resolution procedure at present provided for in the clause would produce an absurd result in practice. That is why I tabled the amendment.

As members of the Committee will recall, Sections 141 to 143 of the Immigration and Asylum Act 1999 make provision for the taking of fingerprints from a limited class of persons defined in Section 141(7), including those who arrive without the proper documentation, persons who have committed or may commit immigration offences, as well as those who claim asylum. The Committee will have noted that these provisions are limited to the taking of fingerprints and that they apply only to certain limited classes of persons specified on the face of the statute.

In Clause 109 of the Bill the Government are seeking to take powers to make regulations requiring the provision of data relating to any external physical characteristic of any person who applies for a visa, entry clearance or leave to enter or remain—in short, all those who seek permission to come to or stay in the United Kingdom.

So the Government were not correct in their assertion in the memorandum to the Select Committee that these powers are the same as those already passed by Parliament in Sections 141 to 143 of the 1999 Act for three reasons. First, the powers sought will relate to any physical characteristic, not only fingerprints; secondly, the powers will apply to almost anyone seeking to enter the UK rather than to the limited categories of persons specified on the face of the 1999 Act, such as those without adequate documentation; and, thirdly, the Government seek the approval of Parliament for a broad regulation-making power under Clause 109 rather than specifying in detail on the face of the Bill the procedure to be followed, as they did in the 1999 Act.

Even leaving aside those arguments, the ultimate flaw in the clause as presently drafted—which is why it is important to have this detail on the official record today—is that it would have produced an absurd result because similar powers provided for in the 1999 Act already require an affirmative resolution.

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Section 144 of the 1999 Act, which comes immediately after the provisions cited to the Select Committee in the Home Office memorandum but which was not referred to in that memorandum—I am sure that that was an oversight and not intentional on the part of the Home Office; I make no allegations—states:

    "The Secretary of State may make regulations containing provisions equivalent to sections 141, 142 and 143 in relation to such other methods of collecting data about external physical characteristics as may be prescribed".

That is a regulation-making power for the Secretary of State to make provisions equivalent to Sections 141, 142 and 143. It is, therefore, exactly the same as the power that the Government are seeking to take in this Bill under Clause 109(1), although it would apply only to the limited classes of persons specified in Section 141(7) of the 1999 Act rather than to the broader classes of persons envisaged by subsection (1) of Clause 109. However, by virtue of Section 166(5) of the 1999 Act, any regulations under Section 144 are to be made by affirmative resolution.

I have had to place that on record, but what I have tried do by means of this amendment—and I am relieved that the Government have accepted it—is to get the Government out of creating an absurd situation. It is one that would have been short-circuited if indeed the correct section had been referred to in the Home Office memorandum to the Select Committee. I hope that we have now got out of that conundrum.

Lord Bassam of Brighton: I shall try to cover the entire group of amendments: Amendments Nos. 233ZA, 233ZB, 233A, 233B, 234A and 234B.

Amendment No. 233ZA would delete Clause 109(4)(g) and remove specific reference to the inclusion in any regulations made under this clause or provision for the use and retention of information collected under Clause 109. Amendment No. 233ZB would effectively prevent the Secretary of State from including in any regulations made under Clause 109 provision permitting the use of any information collected under those regulations for anything other than immigration and crime prevention and detection purposes.

The clause as drafted clarifies that the regulations may provide for the use and retention of information collected under those regulations, and may permit the use of information for specified purposes other than immigration.

It is right and proper that this information might be used for purposes other than immigration. This might well include the prevention and detection of crime, but it might also be used in the proper exercise of other government functions. At this time, we simply do not know what wider uses might properly be made of the data or, for that matter, that any uses other than those relating to immigration control will be appropriate. But to limit our ability to make proper use of the data would, we contend, be inappropriate and not in the best interests of society generally.

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Any provisions allowing for the use of information other than for immigration purposes would be set out in regulations and so would be transparent and open to full parliamentary scrutiny. As a consequence of Amendment No. 233A, scrutiny of these regulations will now be subject to the affirmative procedure. We are happy to have signed up to that amendment and we entirely accept the case that the noble Baroness has made, which was very well put. I am sure that the Committee will accept that this provides an adequate safeguard against any improper use of these data.

Any exchange or use of data collected under these powers will, of course, be subject to the safeguards contained in the Data Protection Act 1998. So we welcome Amendment No. 233A and the report of the Select Committee on Delegated Powers and Regulatory Reform which urged that the powers to make regulations under Clause 109 be subject to the affirmative procedure. We were happy to go along with that recommendation.

The collection of personal data is always an important and sensitive issue. Although when preparing the Bill we felt that the negative procedure would provide sufficient safeguards, we are happy to accept the amendment providing for the affirmative procedure to be adopted when we bring forward regulations.

Clause 109 allows for the making of regulations on the collection of information on the external physical characteristics of certain individuals. On the face of it, Amendment No. 233B would not alter those provisions. However, in our view the removal of the reference, among other data, to

    "the features of the iris or any other parts of the eye"

in the definition of "external physical characteristics" removes some clarity from the provision. We believe that the features of the iris and other parts of the eye are external physical characteristics and we think it right to make that plain on the face of the Bill.

On Amendment No. 234A, the schemes envisaged under the powers contained in Clause 110 are aimed at frequent travellers who pose a low immigration risk. Any scheme would be designed around the data already registered with—and the technology used by—the Home Office to automate the arrival controls. The benefit for those who participate in such a scheme is that they are likely to pass through our immigration controls more quickly than would otherwise be the case. We do not think it would be right to expect the taxpayer to fund a scheme that exists pretty much for the benefit of frequent travellers. The amendment would remove the Secretary of State's power to charge for this service. For that reason we oppose it.

12.15 a.m.

Lord Avebury: What about the voluntary scheme that has already been piloted by the airlines, to which I referred? Has it been working well?

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