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Lord Bassam of Brighton: The noble Lord raised the status of the pilot scheme. That scheme is currently being evaluated in conjunction with the British
Airports Authority. We have not had the full fruits of that evaluation. I recognise the noble Lord's point. Of course we shall want to ensure that that evaluation is well understood. Clearly, we will want to bring the fruits of that to your Lordships' attention when it is complete, but it is just at the pilot stage at the moment.The new clause inserted by Amendment No. 234B would place a requirement on the Secretary of State to lay before Parliament a draft of any code of practice adopted in respect of those engaged in the collection of physical data under the provisions of Clauses 109 and 110. The code in question is not new, but is referred to and defined in Section 145 of the Immigration and Asylum Act 1999. We have been over that point. "Code" is defined in Section 145(6) of the 1999 Act as:
- "in relation to England and Wales, any code of practice . . . in force under the Police and Criminal Evidence Act 1984"
- "in relation to Northern Ireland, any code of practice . . . in force under the Police and Criminal Evidence (Northern Ireland) Order 1989".
Subsections (1) and (2) of that section ensure that a person authorised to, among other things, gather data,
- "must have regard to such provisions of a code as may be specified".
That seems sensible to ensure clarity and fairness. There is no requirement in the 1999 Act that any such code be laid before Parliament. We do not accept that such a requirement would be right. No argument was made against that at the time. The amendment would require the Secretary of State to engage in a consultation process about pre-existing codes of practice established under non-immigration legislation. We do not think that that is acceptable; it would make a nonsense of the provision. We therefore cannot accept that amendment.
I am sorry for the length of the explanation but I wanted to go through these amendments very carefully.
Lord Avebury: I do not think that the Minister should apologise for his comprehensive and clear explanation of the effect of Clauses 109 and 110. I congratulate the noble Baroness, Lady Anelay, on her success in persuading the Government after her careful study of the opinion of the Select Committee on Delegated Powers, and its relevance to Sections 141 to 145 of the 1999 Act, that there should be an affirmative resolution procedure. I think that she has done the Committee a great service in persuading the Government to accept that line of argument.
At this late hour I shall not run through everything that the Minister has said. I should like to thank him for his careful explanation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 233ZB not moved.]
Baroness Anelay of St Johns moved Amendment No. 233A:
- Page 58, line 11, leave out from "shall" to "House" and insert "not be made unless a draft of the regulations has been laid before and approved by resolution of each"
[Amendment No. 233B not moved.]
Lord Filkin moved Amendment No. 234:
- Page 58, line 23, leave out subsection (10).
Clause 109, as amended, agreed to.
Clause 110 [Physical data: voluntary provision]:
[Amendment No. 234A not moved.]
Clauses 110 and 111 agreed to.
[Amendment No. 234B and 235 not moved.]
Lord Dholakia moved Amendment No. 235A:
- Page 59, line 21, at end insert "through a named officer"
Our amendments deal with the disclosure of information. Amendment No. 235A is designed to restrict the wide-ranging provision permitting the Secretary of State to require public authorities, employers and financial institutions to supply information to him regarding persons he suspects of committing an immigration offence. We are certainly concerned about the potential infringement of a person's right to privacy. We are also concerned about the difficulties that individuals will have in challenging the accuracy of information disclosed in obtaining their records. Safeguards must be put in place in the provisions to avoid abuse and errors, to ensure the confidentiality of information and to ensure that only qualified persons are able to give or receive information.
Amendment No. 235B is designed to narrow the group of people about whom the Inland Revenue shall be required to provide information to only those who have committed immigration offences rather than anyone who does not have leave to enter or to remain.
We are suggesting in the last two that information should be limited only to fact and should exclude opinions formed by, for example, the Commissioners. I beg to move.
Lord Kingsland: I should just like to say that we support these amendments.
Lord Filkin: In speaking to the four amendments I hope that I can put on the record a number of points.
Although I cannot agree with the specific amendments, I hope that I can go some way either to calm concerns or to explain why we think that certain measures are necessary.Clause 112 makes it compulsory for local authorities to comply with requests for information from the Secretary of State made within well defined criteria and provides a new legal obligation for authorities to comply with requests for information. The proposed amendment would require such disclosures to be made through a named officer. However, stipulating a named officer who must respond to those requests does not place the responsibility for compliance on that officer. Appropriately, it still remains the local authority's legal duty to comply. Local authorities and the Secretary of State are required to comply with the Data Protection Act 1998 in processing personal data. The Act requires among other things that data be processed securely.
The proposal to route disclosure through a named officer would fail to guarantee secure processing as the request for information necessary would still have to be routed to that person on its being received by the local authority. Therefore, access to the information and the request would not be limited to the named officer despite the requirement that the reply be sent by a named officer.
I wish to discuss who we are talking about and what sort of information we are talking about. The purpose of the information is to help establish the whereabouts of a specified individual whom the Secretary of State reasonably suspects has committed a specified immigration offence. This is not a general fishing trip. The offences in question include illegal entry, overstaying, working in breach and absconding from temporary admission. Local authorities have always been an important source of information and many have frequently complied with such requests but current practice in terms of co-operation varies considerably. There is a degree of ambiguity in the interpretation of current powers.
I wish to mention also the type of information that the Home Secretary might seek. He might seek information from council tax and housing records to locate specified individuals that he reasonably suspects are immigration offenders and are living, or have lived, in the local authority's area. The request for information has a narrow, specific focus. We believe that it is compliant with Article 8 of the ECHR which provides that any interference with the right to a private life, which includes disclosure of data about a person, must be in accordance with the law and necessary in a democratic society for a legitimate aim. We believe that the disclosures I have mentioned are proportionate to that aim. The offences in question include entry to the United Kingdom in breach of a deportation order or without leave; remaining beyond the time limit of leave; failing to observe a condition of leave or temporary admission; remaining without leave; and having entered as a crew member.
I turn to Amendments Nos. 235B and 235C. The central focus here, although not the exclusive one, is the identification of people who are working without
permission. Clause 113 would enable commissioners of the Inland Revenue to disclose information from their records to the Secretary of State for three separate specified purposes: first, to establish the whereabouts of a specified person if the Secretary of State reasonably suspects that the person does not have leave to enter or remain and does not have permission to work in the United Kingdom; secondly, to verify whether applicants for naturalisation meet the "good character" requirements in Schedule 1 to the British Nationality Act 1981; and, thirdly, to verify whether sponsored entry clearance applications meet the maintenance and accommodation requirements of the Immigration Rules.I accept that the amendment is a well intentioned attempt to provide consistency with Clause 112 which relates to the provision of information by local authorities. However, we do not believe that consistency with Clause 112 is appropriate as the latter is aimed at locating persons whom the authorities seek to remove regardless of whether they have worked in the UK or not.
The second amendment would seek to remove from Clause 113 the proposed gateway in subsection (4) enabling the Inland Revenue to disclose information. The Government cannot accept that because we regard the proposed gateway in respect of sponsored visa applications as necessary in the interests of providing a better joined-up service to applicants and reducing the current scope for fraud in entry clearance cases. In seeking information in such cases the Secretary of State will look for evidence of wilful refusal to meet tax applications as that will provide potential grounds for refusing naturalisation. That would certainly require the disclosure of hard facts.
We do not believe that it is appropriate simply to draw a hard distinction between fact and opinion in operating the gateway. In many circumstances, the Secretary of State would also be seeking to get an opinion and an understanding of the context in which the facts operated from the Inland Revenue in such circumstances. In other words, there is a wish to have regard to the interpretation of events and the pattern of conduct formed by the relevant bodies as well as the hard data about an applicant, such as their criminal record, in reaching decisions about naturalisation considerations.
I have already spoken to the Data Protection Act, requiring authorities to process data securely and accurately. Subjects can complain to the courts and the Information Commissioner if their data are inaccurate or have been inappropriately handled. I hope that that assists the noble Lord to consider withdrawing the amendment.
12.30 a.m.
Earl Russell: I briefly ask the Minister to give a little more thought to my noble friend's point about opinion. I declare an interest as a member of the Lord Chancellor's Advisory Council on Public Records. The work of the committee should not be properly discussed in public. However, I do not believe that I
am giving away any secrets when I say that the free expression of opinion by officials gives us a good deal of work. For the sake of future historians, will the Minister pay some attention to my noble friend's point?
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