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I was interested in the suggestion of the noble Lord, Lord Avebury, that we should have an independent monitor. I am sorry that he did not volunteer a name from the Liberal Democrat Benches because they seem to be rich in individuals who like undertaking that sort of work, and we greatly respect the political tradition of which that is a part. There is to be a chief inspector of the BIA, which will be created by this Bill. The responsibilities of the chief inspector will cover the need to monitor and report on several matters, including compliance with the law

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on discrimination. Rather than cause confusion by creating yet another position to undertake matters of compliance in that regard, it is probably best to leave that provision as it is.

The noble Lord, Lord Dholakia, challenged me to say whether we had consulted with the CRE. I would be extremely surprised if we have not done so, but I will check on this and ensure that the organisation or its successor body, the Equality Commission, is fully apprised of these parts of the legislation.

3.30 pm

Lord Avebury: I am both surprised and gratified by what the Minister has said about the categories that are going to be treated preferentially in the roll-out because it does not conform with what is set out in the Explanatory Notes to the Bill. According to those notes, the determining factors will be those categories which present the greatest risk to immigration control, as well as whether the technology and resources are available for particular applicants. The categories the noble Lord has just mentioned—five-year residency, work permit renewals and spouses—are obviously not those representing the greatest risk to immigration control. This may indicate that perhaps there has been a reconsideration since the Explanatory Notes were written, which is all to the good. However, where the Government propose to depart substantially from their previous commitments—I believe that one can take the Explanatory Notes as being something of a commitment—it would be useful if they would keep those immediately concerned with these matters informed by saying that they no longer adhere to this text, but have adopted different procedures.

I do not expect an answer from the Minister to my next point, but perhaps we can come back to it later. I am satisfied to a large extent with his undertaking that the chief inspector of the BIA will monitor the roll-out and ensure not only that it conforms with anti-discrimination legislation but also with the Data Protection Act. This will be fully covered in the remit of the chief inspector, and he or she will be able to report to Parliament from time to time on the management of the roll-out. Subject to those assurances, which I do not expect the Minister to give off the cuff in conclusion to this debate, I think that we have had some reasonably satisfactory answers.

Lord Hylton: It occurs to me that there may already be in this country quite large numbers of non-nationals who have national insurance numbers, who are registered with GPs, and who may already pay PAYE. Such people are a low priority for BID documentation. If they could be held back, perhaps the rest of the process would be smoother. Again, I do not expect the Minister to answer that now, but will he write to me?

Lord Judd: I welcome the Minister’s response, and have several questions. First, was racial profiling seriously considered? Even if racial profiling was not intended, could it inadvertently come about? Moreover, does the Minister accept that, even if it is not compulsory to carry the document, the fact that it exists and can be

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demanded when services are sought could lead to such racial profiling among ethnic minorities’ full British citizens and therefore to indiscriminate and disproportionate pressure on them in yet another sphere? Finally, will the Minister assure the Grand Committee that the Government are convinced—and tell us why they are convinced—that whatever they do will address the point that I underlined, and which was in the Joint Committee’s report, that the registration scheme may be difficult, if not impossible, to reconcile with the respect for private life as spelled out in Article 8 of the European convention?

Lord Bassam of Brighton: The noble Lord, Lord Hylton—or it might have been the noble Lord, Lord Avebury—asked about data protection. Under Clause 47(2)(h), the chief inspector of the Border and Immigration Agency must also report on the provision of information. I think that that covers the point.

I should say to the noble Lord, Lord Judd, that the Government have put in place many very positive pieces of legislation to tackle discrimination. I take personal pride in having worked with the noble Lord, Lord Dholakia, and putting in place legislation, in 2000 or 2001, that tackled indirect discrimination. The inadvertent discrimination to which the noble Lord refers is probably covered by that legislation. I certainly hope that it is, although that is not to say that there is no discrimination from time to time because it has been legislated against. It certainly is not our intention that that should be the case. No doubt that is an issue on which the chief inspector will wish to focus some attention, not least because complaints have to be looked at.

The noble Lord asks again whether the existence of a BID means that black and ethnic minorities will be subject to de facto racial profiling. No, these provisions are about ensuring that individuals produce a reliable, secure document, as I have explained on many occasions in the course of our discussions, so that they can establish their immigration status. In the illegal-working context, the Secretary of State will issue a code to assist employers to conduct document checks so that there is a proper verification process, without recourse to any form of unlawful discrimination where public officials require the document. They, as I have already said, are subject to race relations legislation and it would not be lawful to require a BID to be produced based on appearance. That is clear and relates precisely to what I said at the outset.

Lord Avebury: I wonder what the employer’s code of conduct will say about a job applicant who is clearly from a racial minority—let us say he appears to be Somali. An employer knows he is under an obligation not to employ anyone who is here illegally. Is there not a temptation for him to safeguard his own back by saying to the applicant, “Have you got a BID?”, or, “What other evidence have you got to satisfy me that I am legally empowered to employ you?”?

Lord Bassam of Brighton: I would have thought that would be a very sensible course of action for an employer, once we have introduced the BID. It is not about discrimination, but that is precisely the purpose of creating the BID.

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Lord Avebury: Is that not exactly the point that was raised by the noble Lord, Lord Judd, that everyone applying for a job who looks Somali will be asked to produce a BID, whether he was born in this country or not?

Lord Bassam of Brighton: Not necessarily. I cannot see that that will always be the case. The presence of a verifiable form of documentation will be of great assistance in those circumstances.

Lord Judd: I understand the commitment of my noble friend on these issues. He does not have to convince me. It is important to recognise that it is precisely through these kinds of measures, with their unintended consequences, that resentment is built up among the ethnic minority population in this country. For all the reasons, of which we have been all too well aware, that have been given in the past week, that is a dangerous thing to do as well as being wrong.

If the Government, commendably, are emphasising the importance of the identity of citizenship, the confidence of citizenship, the importance of becoming a full UK citizen and so on, and the experience of a significant section of the population is that they are second-class citizens because they can be picked on and are being picked on more than white members of the community, that will cause resentment and will certainly lead to a feeling of profound hypocrisy about the whole process of government. If his department, of all departments, is talking about the importance of security, which in my view is related very strongly to the idea of full citizenship and the identity with citizenship, that point cannot be rationalised away. The points made by the Joint Committee are very real possibilities. We need to hear evidence why the Government believe that those possibilities will not become probabilities.

3.45 pm

Lord Bassam of Brighton: Is my noble friend saying that employers should not require any form of documentation before considering whether to employ someone? Is he saying that person X turns up, meets an employer and is given a job without any form of check on his status? I find that very surprising. Currently, employers would probably require to see a birth certificate or a passport.

Lord Judd: I would argue that the employer should require exactly the same information as he requires from anybody else. There should be no likelihood that he will ask for special information because of the colour of a person’s skin.

Lord Bassam of Brighton: My son started part-time work a year and a half or so ago. His prospective employer asked him to produce his national insurance number and some verification of his age, date of birth and residence. There is a degree of equality of treatment here in any event. I do not think that the request to have access to the BID to verify that person’s immigration status is any more discriminatory, or likely to be. These things are very simple. They need to be in place so that employers can be reassured and protected.

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Lord Avebury: Before the noble Lord, Lord Judd, finishes, the Minister has told us that normally a national insurance certificate would cover a person’s entitlement to work. If a person who has previously been in employment and is transferring to another job can satisfy the employer that he has a national insurance number, that should be equally valid, whatever his racial or national origin. The existence of a national insurance number should prevent the employer demanding any other proof of his legal presence in the UK. I take it that it is only when a person goes to his first job in the UK, for example, having graduated from a university or left school, that he may not necessarily have a national insurance number. It is in those cases only that any doubt would arise as to his legitimacy as a person of residence in the UK and able to take employment. Perhaps the number of cases will be pretty small if the national insurance document is the primary evidence of ability to work.

Lord Judd: I have to say to my noble friend—we use these expressions “noble friend”, but we are actually personal friends and it makes it all the more difficult because I know that we share many of the same convictions and objectives—that I think he has done his best on a difficult wicket. He has said all that the Government can say about the matter. That only underlines my anxieties, which were certainly accentuated by my participation in the discussions in the Joint Committee. I must say that although, for obvious reasons, I am at this stage going to withdraw the amendment, it may be necessary to come back to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 14A:

The noble Lord said: As the Committee no doubt realises, this amendment follows a similar one we tabled in another place concerning the non-biometric information which may be included in the BID. At present it is a completely open-ended question that is not even confined to information about the holder of the document. It could be information about any other matter. The Minister in another place said that it was important to capture a great deal of information that was not set out in the amendment. He went on to give examples, including two items that do appear in our list and two that do not: nationality and gender. If the Government are prepared to accept in principle that there should be a list, we would be perfectly happy to add those items to the ones already set out in our amendment. The object of the exercise is to specify what non-biometric information is to be included rather than to allow the Secretary of State to add any information he likes without even coming back to Parliament for approval.

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If that is not palatable, would the Government agree to an amendment that would limit the non-biometric information at least to facts relevant to a person’s immigration status? Earlier, the Minister referred to EU proposals for biometric resident permits and said that we need to ensure that the BID satisfies the conditions of that forthcoming regulation—I entirely agree with that proposal. Can the Minister give us further details of that proposal, and in particular let us know where we can find it on the EU website, which in my experience is not easy to navigate? Will he also say whether the Government would agree to restrict the non-biometric information to what may be required for the purpose of compatibility with the EU resident’s document, to which the UK may agree in future? Further, can we have an assurance that the data protection regime that applies to this information will comply fully with the regime covering the EU resident document?

I certainly hope that we are going to have some answers to our questions this afternoon. On Monday, we were not very successful in getting the information we were asking for, particularly about judicial review. However, I am grateful to the Minister for his earlier assurance that he would write to us. Indeed, he has already done so following Monday’s proceedings. If we do not get answers in Grand Committee, I hope that at least we can have a further letter from the Minister dealing with any points he may have missed this afternoon. I beg to move.

Baroness Anelay of St Johns: I rise to speak to a rather different aspect of this matter. The noble Lord, Lord Avebury, referred to the need for some form of guidance on what may comprise non-biometric information, and he seeks from the Government a list so that we can flesh out how they anticipate it will be developed. I have just advised the Bill team that it might be helpful to the Committee if I speak to Amendment No. 26 and group it with this amendment. I had intended that Amendment No. 26 would be taken separately, but given the way in which business is flowing today, that would not be helpful because it could well not be debated until another day.

I hope that the noble Lord, Lord Avebury, has had an opportunity to find Amendment No. 26 in the list. I apologise for not having given advance notice that I intended to group Amendment No. 26 here, but it just occurred to me while he was speaking. The noble Lord made it clear when speaking to his amendment that it would be helpful if I were to refer to Amendment No. 26 at this point. The intention is to ask the Government whether any of the non-biometric information could comprise sensitive personal data as defined in the Data Protection Act.

The Minister will know from our discussions on other Bills, including those on the Identity Cards Act last year, that we have always been keen to discover which personal data will be registered. Of course, by its nature any registration of biometrics is going to register personal information—it cannot do anything else—but we want to be sure that it will not include any sensitive personal data as defined in the Data Protection Act. If the Minister can give me an assurance in that regard, I will not need to pursue the matter any further.

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Lord Bassam of Brighton: Amendment No. 14A would limit the non-biometric information recorded on or in the biometric immigration document. Limiting the information which can be recorded on the document in this way would mean that the United Kingdom could not use the biometric immigration document provisions to comply with the requirements of a forthcoming European Commission regulation. I think that the noble Lord, Lord Avebury, referred to that. That regulation will require the United Kingdom and other member states to include certain non-biometric information on a biometric document when a person is allowed to stay in the United Kingdom, other than that listed in the amendment.

At present, the information recorded on existing non-biometric vignette-type residence permits is set out in an EC regulation which we must comply with. The vignettes already include information which is not on the list in the proposed amendment including nationality and sex of the holder, country issuing the document, details of when the document was issued and when it expires, and various security features.

In the near future, a draft EC regulation will also require the documents which we issue to authorise a person to stay in the United Kingdom to contain biometric information including fingerprints and a photograph, and some other additional non-biometric features such as the International Civil Aviation Organisation symbol for a machine readable document with a microchip. Discussions as to what non-biometric information will be required are continuing at EU level.

Clause 5(2)(d) allows us the flexibility to take account of discussions in the European Union on what non-biometric information should be included on the forthcoming biometric residence permit. It is almost certain that the draft EC regulation will require other information which is not included in the proposed amendments. We cannot agree to the amendment because it would take away the flexibility to make regulations which ensure that we comply with requirements of the draft EC regulation.

The noble Baroness drew Amendment No. 26 into the debate, for which I am grateful. This amendment would undermine the operation of the biometric registration provisions for many categories of those who apply for leave, and would prevent us using the biometric immigration document to comply with the regulation to which I referred.

Sensitive personal data include information about a person’s nationality, their religious and political beliefs, sexuality or criminal convictions. When a person applies for leave to remain as, for example, a refugee, a minister of religion, a spouse or a civil partner, they already provide “sensitive” personal data as an essential part of their application.

The Borders and Immigration Agency is well used to processing this type of information fully in accordance with the Data Protection Act and Human Rights Act. In time, a person who applies for leave to remain will have to apply at the same time for a biometric immigration document. The document will be the way in which their leave is granted. The applicant will have to fill in a combined application form including details about

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their leave application. The amendment would mean that the combined application form could not contain any reference to the leave application if it was in a category which necessarily disclosed the person’s sensitive information, for example an application made on the basis of marriage. This would prevent BIDs being issued to individuals in these categories, even though EC law will require us to issue them with a biometric card wherever we grant them leave.

The amendment would prevent the Secretary of State asking the person for details of their previous criminal convictions as part of a combined application for leave to remain and for a biometric immigration document. That would prevent the Secretary of State from assessing whether it was appropriate to grant leave, and so issue the BID, in the light of the applicant’s previous convictions. This could potentially have very serious implications for public safety, as I am sure the noble Baroness understands.

I reassure her that the Data Protection Act 1998 and Article 8 of the ECHR provide safeguards for those who are required to provide sensitive personal information. For that reason we argue that the amendments are unnecessary.

4 pm

Baroness Anelay of St Johns: Before the noble Lord, Lord Avebury, speaks to his amendment, I should thank the Minister for that answer. That might seem strange because he rejects my amendment, but he has very helpfully exposed some of the contradictions that would flow from it. He is right that I am not seeking to undermine the security that the system is supposed to bring about, and, having listened to his answer, I certainly undertake not to return to the matter when it reappears either in the list of amendments or on Report.

Lord Avebury: The Minister’s response to the amendments, which would limit the scope of any of the paragraphs in Clause 5, is very reasonable. On this occasion I entirely accept that we need to make provision for compliance with the draft EC regulation and for the rules of the ICO, which requires its symbol to be displayed on these documents. On the other hand, we have been trying all along to limit the total freedom granted to the Secretary of State in every clause and which goes far beyond the limited requirements that the Minister outlined in answer to our amendments. I suggest again that we limit the clause to matters that are relevant to a person’s immigration status, but that may be too limited.

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