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Baroness Anelay of St Johns: I wish to ask some questions on the drafting of both the Government's proposed sub-paragraph (5) in Clause 27 and Amendment No. 52, spoken to by the noble Lord, Lord Avebury, which he seeks to substitute for that sub-paragraph.

I apologise for raising an issue now that occurred to me only during our debates in the Chamber yesterday on the Identity Cards Bill. Had I realised before, I certainly would have sought to address the matter in an amendment, but the wording about which I wish to pose questions arises in this sub-paragraph. I would be happy for the Minister not to answer my questions today but I would welcome a letter from her, so that I might properly consider the matter between now and Report. I thought it was right to put that on the record, because noble Lords who have attended these proceedings so assiduously need to be aware of my questions. The Government may have answers ready but they may well wish to reflect on them.

My questions relate to how the Government have defined those matters which will comprise the identification of a person. I appreciate that in proposed sub-paragraph (5) the Government are trying to provide an alignment with the Identity Cards Bill. In our debates on that Bill we have sought from the Government an assurance at the Dispatch Box that any identification defined as in sub-paragraph (5) could not be construed to include DNA, that that could not come within the definition of external characteristics, and that if any future government decided that it would be right for them to attempt to introduce DNA as identification, there should be a proper method of putting that clearly into a Bill—preferably by primary legislation, but it may well be by a proper process of affirmative order.

Can the Minister give an assurance at the Dispatch Box that the definition of "external physical characteristics" here could not in any way today comprise DNA and that the Government would not be permitted by the Bill to introduce DNA as an identifier in future?

My second question is more prosaic and relates to the definition of "fingerprints", mentioned towards the end of the sub-paragraph. Looking through the Bill in haste this morning I may have missed something, and if so, I apologise. As far as I can see, there is no definition of "fingerprints" in the Bill, and many people would say, "So what? We know what fingerprints are". But it has been thought necessary in the Identity Cards Bill to define fingerprints, I assume,
 
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because the identifier will be the new biometric fingerprint, so a belt-and-braces approach has been adopted.

I notice that Clause 43(1) of the Identity Cards Bill defines "fingerprint". It states:

Have I missed the definition in the Immigration, Asylum and Nationality Bill? If so, I apologise. If it is not in there, will the Minister take advice on whether it should be there, and if not, why not, when it is in the Identity Cards Bill? Could she set my mind at rest on that? I would certainly be happy to receive a letter between now and Report if she felt that that was a better way of dealing with the matter?

Lord Dholakia: I understand that for the time being, ID cards will be voluntary. The only documentation with which an individual could confirm his identity would be a passport. I see no reason why a copy of such a document could not be handed to the individual to establish his identity in terms of facilities, doctors, schools, or whatever. That would be helpful. There seems to be some resistance to providing a copy, particularly given Andy Burnham's comments in the other place. What is the logic behind that?

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Baroness Ashton of Upholland: I cannot answer the noble Lord's question on behalf of my honourable friend Mr Burnham but I will ask him for the answer. I am sure that there is a logical reason.

I am very grateful to the noble Baroness, Lady Anelay, for saying that she would be happy with a letter. I will assure her at least that external physical characteristics do not include DNA. I hope that that helps her. If I can provide assurance on any other issues, I will do so as we proceed.

In Clause 27 we are trying to bring together and rationalise our provisions on the retention and examination of passports and other documents produced or found on passengers during an examination. Noble Lords will know, probably better than me in many cases, that under the existing law an immigration officer may retain a passport or other identity document produced during examination until the person concerned is given leave to enter the UK or is about to depart or be removed. An officer may also retain documents relevant for the purposes of examination that were produced or found during that examination, and to examine them for up to seven days or while he is satisfied they may be needed in connection with either an immigration appeal or criminal proceedings.

Amendment No. 51A would alter the regime as the noble Lord, Lord Avebury, has indicated, first, by preventing an immigration officer retaining the documents of a person against whom criminal proceedings were pending, where it is decided that the person does not require leave to enter the UK; and, secondly, preventing an immigration officer retaining documents relevant to an outstanding immigration
 
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appeal. I am well aware that in Committee one uses amendments to probe the Government's intentions, so I do not intend to spend much time looking at the specifics behind the amendments. I am pretty certain that the noble Lord, Lord Avebury, seeks assurance on what the Government propose to do and that the clause will work effectively. I say categorically that there is no intention to hinder anybody who wishes to make a voluntary departure. Where there are neither criminal proceedings nor a pending immigration appeal to which a document is relevant evidence, documents are normally returned when a person is removed from, or decides to leave, the UK. The only circumstances where it may not be possible to return a document is where it is required in criminal proceedings, has been tampered with, is a forgery or contains a forged visa or entry stamp. In such cases, the national authorities of the person concerned are contacted in order to re-document the passenger and thereby enable them to leave or be removed.

Lord Avebury: Does the Minister mean criminal proceedings against somebody else? Presumably, an individual would not be allowed to depart voluntarily if he or she had committed the offences. Here we are dealing with a case where somebody wants to go; as the noble Baroness says, the passport is normally given back unless it is forged. I could understand if that were the intention, but the clause goes much wider.

Baroness Ashton of Upholland: It might be criminal proceedings concerning somebody else. There may be circumstances where it was appropriate for the person to leave, even though criminal proceedings were pending. I cannot think of any instances but I would not necessarily rule that out. I understand that the aim of the amendment is to make certain what the Government's intentions are, so I tried to spell out as clearly as possible all the circumstances and to address concerns raised in another place about what my honourable friend said. The noble Lord quite rightly indicated that he understood the point about forged documents. If the documents were relevant to criminal proceedings, they could be retained on that basis.

The critical issue is that, where the individual is allowed to leave the country voluntarily, we would look to get him or her re-documented if we had to hang on to the documents for other reasons—it may have nothing to do with the individual concerned. Individuals may be completely innocent in cases where their documents are not appropriate or right, in which case they should be allowed to leave and re-documentation should occur. We are interested in hanging on to such documents only where they are relevant for the purposes of an appeal or criminal proceedings. That is why this clause is included. I hope that that is as clear as possible, but I would be happy to answer any further questions in correspondence.

Amendment No. 52 relates to biometrics and confirming a person's identity. I cannot accept it because it prevents those checks being used as part of what we know is an important risk-based, intelligence-led border operation. We know, for example, that one such operation, which included checks on the
 
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passports of an EU member state, revealed that at one point of arrival some 2.5 per cent of all passports checked were fraudulent. The majority of cases involved people impersonating the rightful holder of the document. We hope that biometric checks will help us to prevent that kind of concern reoccurring.

We believe that biometric checks will enable us to detect high-quality forged documents that do not on visual inspection give an immigration officer reasonable grounds to suspect that a forgery has taken place. As we have already indicated, at times of high security, there might need to be a higher level of border security checks, which might involve, for example, regular biometric checks of all holders of biometric travel documents. It is important to be able to do that more generally, and the amendment would not allow us to do so.

The definition of fingerprints has been used in other Immigration Acts; it includes scans of fingerprints as well as physical prints. I am advised that it has not been suggested that the definition in relation to the Immigration Acts has ever been ambiguous, but I take the point made by the noble Baroness, Lady Anelay, about the definition being included elsewhere. I will take that away and look at it, but, as I understand it, its meaning has a well documented historical basis in other Immigration Acts. I have just been told that it is not defined in those Acts, but that the term "fingerprints" is used. The noble Baroness has raised an important point which I will take away to get a proper answer.

Clause 27 is an important part of the jigsaw to ensure that we keep our borders secure and continue to retain documents, as appropriate. However, under the conditions and for the reasons that I have described, it is not in any way intended to prevent those who wish to travel in or out of the country doing so. The circumstances that I have indicated are those in which that power would be used.

The noble Lord, Lord Avebury, raised the issue of consolidation during the passage of the Nationality, Immigration and Asylum Bill in 2002, and my noble friend Lord Bassam, responded. I know that the noble Lord, Lord Avebury, quoted St Augustine, as saying, "Give me chastity—"


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