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Perhaps paragraph (d) should say instead that the Secretary of State could make provision for biometric immigration documents to include any non-biometric information that may be specified in an EC regulation or in any other international agreement to which the United Kingdom is party. That would mean that the Secretary of State would be able to do all the things that the Minister has suggested are necessary and on which we agree, but it would not give him the blank cheque to add any other information whatever to the non-biometric information that must be included in the BID. I am not suggesting that the Minister gives me an answer off the cuff, but, once again, as with so many of these matters, I suggest that he thinks about

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what I have said and tells us later, preferably in a letter, whether the Government can comply with our suggestion.

Lord Bassam of Brighton: It is worth reminding the Committee that the regulation-making power is the affirmative procedure. Noble Lords will have the opportunity to discuss this further then. I will not give the commitment that the noble Lord seeks, but I will read very carefully what he has said, and no doubt we will reflect on it. He will get another chance to look at this when the regulation is laid for consideration. The affirmative procedure is very powerful.

Lord Avebury: By that time, however, it will be too late. If the regulation does not comply with my suggestion, we cannot discuss it further, and I will have to take it or leave it. I therefore ask the Minister to think about my proposal that we give the Secretary of State the ability to add to the BID any non-biometric information that is required by some EC regulation or by any other international agreement to which the UK is party. If he says that that is not enough because the Secretary of State may think of some non-biometric information some years down the line which he may want to add, and that my suggestion will prevent him from doing that, I would say that that would be a good thing, because any such change of policy would have to be fairly remarkable to give rise to such a requirement, and it would be right for the Secretary of State to return to Parliament on that occasion to ask for fresh primary legislation. I certainly hope that before we leave Grand Committee we will have some sort of an answer from the Minister, so that we can consider what our attitude will be when the matter comes up again on Report. Indeed, if they accept our suggestion, we will not have to raise the matter again. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 15:

The noble Baroness said: I shall speak also to Amendments Nos. 16 and 17. I note that the Government have helpfully tabled some amendments in the group.

The object of the amendments is to restrict the Secretary of State’s wide powers to do almost anything she wishes with people’s private information. I wrote the speaking notes before the recent changes in government personnel, so yesterday I very carefully changed my “he”s to “she”s. The amendments build on our previous debates led by the noble Lord, Lord Avebury, about the problems that may arise as a result of the way the Government plan to impose this system of immigration control.

Clauses 5 to 15 set out the powers for the Secretary of State to make regulations requiring anyone subject to immigration control to apply for the issue of a biometric immigration document. Persons subject to immigration control are those who require leave to remain in the United Kingdom, whether or not they have leave to remain.

We believe that the scope of the registration regulations is extremely broad. The bulk of the detail will be

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contained in the regulations made by the Secretary of State. These regulations can include such open-ended obligations as requiring the use of a document where a question arises about a person’s status in relation to nationality or immigration—we have had some debate about that—in Clause 5(2)(b)(iii), and requiring a person who produces the document to produce other information for comparison. That is in Clause 5(1)(c).

We have also seen that there is potentially unlimited scope on what information can be required. Regulations can make provision about the content of the document, which, as we have seen from previous groups, can include non-biometric information, and allow for the document to be combined with other documents, as in Clause 5(2)(e). They can also require the document holder to notify the Secretary of State at any time stipulated by regulations and require the surrender of the document or any other documents, as in Clause 5(2(i)(j) and (k).

Sanctions for failure to comply with any of the regulations can be severe. While the financial penalty is limited in Clause 9(3) to a £1,000 fine—that seems quite high—more drastic steps can be taken, such as the cancellation of leave to remain in the UK. Clause 8 provides a direct link between the information contained on the document and the information that will be held on the national identity register, created by the Identity Cards Act 2006. This allows for regulations to include provision to permit the use of information for specified purposes not relating to immigration, as in Clause 8(2), and provides that there is no need to destroy information if it is retained in accordance with other enactments, as in Clause 8(4).

Therefore, the potential scope of regulations is extremely broad. They can theoretically force any non-EEA person to provide unlimited information for unlimited purposes. For example, regulations made under Clause 5(2)(d) could require that any person required to apply should provide detailed information about their medical history—we have had a slight reference to that—which could then be used for purposes which have nothing to do with immigration control.

Our amendments have been tabled specifically to require the Government to justify such wide powers. We believe it is important for that to be clearly on the record so that the House may refer to it when the Government later tables any secondary legislation to put the powers in these clauses into effect. We have already heard from the noble Lord, Lord Avebury, about the limitations on the powers of the House regarding statutory instruments being brought forward.

Amendment No. 15 therefore removes from the Bill the permission to combine biometric immigration documents with other documents. We accept that there may be a rationale for that, but the clause as drafted is vague. It would allow Ministers wide powers so that biometric documents could be combined with almost any other document and used for almost any purpose.

Amendment No. 16 would remove the right of the Secretary of State to demand the surrender of other documents on the issuing of a biometric immigration document. Again, our main objection to the current drafting of the clause is its vagueness. It could entitle the Secretary of State to acquire all manner of documents

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that are not necessarily relevant to a person’s immigration or employment status. It is important that the Minister should explain how and why this power is compliant with the provisions of the Data Protection Act. Amendment No. 17 would limit the occasions on which a person in possession of a biometric document must notify the Secretary of State about a change in circumstances. The changes that would need to be notified should be limited to the following: change of address, change of name, or loss or theft of the document. All of our amendments, but particularly Amendment No. 15, would limit the use of biometric immigration documents to their stated purpose of tackling illegal working and other immigration offences.

When we began consideration of the Bill, noble Lords received a letter from the noble and learned Baroness the Attorney-General, dated 22 June. She stated that government amendments would be tabled shortly. I appreciate that there was a hiatus because of government changes and ministerial appointments, so we did not see the government amendments until just before we entered this Grand Committee. That is unusual, because normally noble Lords have up to a week’s sight of government amendments, but sometimes only six days’. The noble and learned Baroness said in her letter that two amendments would specify in the Bill in more detail the circumstances in which the Home Secretary can suspend or cancel a biometric immigration document and would be more explicit about the circumstances in which the holder of a biometric immigration document is to notify the Secretary of State of a change in circumstances.

The noble and learned Baroness also stated that she would table an amendment to make it clear in the Bill that the reference requiring the surrender of other documents on the issuing of a biometric immigration document is intended to mean only immigration-related documents. When we then saw the text of the amendments, I looked particularly at Amendment No. 16B—which the Minister will soon speak to—which, at first sight, appears to be very helpful indeed. It is, as the Minister would expect, always my practice before accepting a government amendment that appears to be a concession to consult my honourable friends in another place. I managed to have a brief word with my honourable friend Damian Green this morning, but as it was at our biweekly tea meeting, he could not give proper consideration to the matter. We scanned it together and accepted that at first sight it seemed helpful, while giving the Government the catch-all in subsection (l), where the Government can add anything else that they like—we are used to seeing that kind of get-out clause from the Government. It seemed to cover the eventualities that we had anticipated should be here.

The list looks good, but between now and Report stage we have to hear what the Minister says about the rationale, and we have to have further consideration of the possible consequences to see whether any are going to be disproportionate or if there are any gaps that should be stated in the Bill rather than left to subsection (l). The Government have made considerable progress. I want to hear what the Minister says, but I reserve the right to come back on Report if need be. I hope that in respect of two of my amendments that

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may not be the case, but I think I will still have difficulty with Amendment No. 15. Perhaps the noble Lord will wave the magic Harry Potter wand and persuade me. In the mean time, I beg to move.

Lord Avebury: I am sure that we all have a difficulty with the point raised in Amendment No. 15, which relates to the paragraph that allows the BID to be combined with another document. That is also the subject of a later amendment in the Minister’s name. I have been curious all along to know what these other documents could possibly be, because no clue is given in the Explanatory Notes. Again, this is not the first time during the proceedings that I have been rather critical of the Explanatory Notes, which do not come up to the usual standard. However, the difficulties we have had with the notes will be covered in one of the letters the Minister has undertaken to write during the course of the Grand Committee.

4.15 pm

The only mention of the combination of the BID with another document in the Public Bill Committee was made in relation to the government amendment which added what is now Clause 5(4). The Minister explained that the BID would be designated as an identity card under the Identity Cards Act 2006 because under Section 16 of that Act, a person can be compelled to produce the BID as someone who is liable to compulsory registration.

In passing, I have to point out that although compulsory registration is the expression used in the Identity Cards Act, no mention of registration is made in the text of this Bill. Indeed, I have already mentioned this to the Minister, but have elicited no response from him. If he wants to put the matter beyond doubt, it would be prudent to add to the end of Clause 5(4) words making it clear that an application for a BID under Clause 5(1)(a) is to be treated as compulsory registration under Section 16 of the Identity Cards Act. As usual, I do not expect the Minister to give an immediate answer to this suggestion any more than I do for the other suggestions I have made during the course of our proceedings this afternoon because I would prefer him to take it away and discuss it with his officials and then let me have a considered view in good time.

However, that still leaves me to wonder with what other document the Secretary of State would want to combine the BID under this paragraph. If it is a document which is necessary to make the BID fit for purpose as an ID card, why not say so? How have the Government managed to overcome an objection raised in the other place by Mr Liam Byrne to an amendment similar to this one which he said,

I have studied carefully what honourable Members have said in Standing Committee in the other place and I can well understand the anxiety that was expressed over the breadth of paragraph (h), which requires,

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The Minister said that the intention was to require notification of circumstances that could affect the holder’s permitted leave to remain. Government Amendment No. 16B details some of the cases, but I am sorry to note that at the end they give themselves a catch-all exemption by allowing other provisions to be added, which rather spoils the effect of the rest of the amendment.

The example given by the Mr Liam Byrne, the Minister in the other place, was a curious one—it was of a Muslim minister of religion. Personally, I wish to encourage greater use by Muslim communities in this country of the training of imams over here, and I was glad to see that last month the Government invested an extra £1 million in this, and have designated Islamic studies as a strategic subject within our universities. The import of foreign imams, many of whom speak no English, encourages Muslim communities to keep themselves separate from the rest of the population, whereas British imams serve the wider interests of their communities because they have a good understanding of society as a whole. But if an imam has come here from Pakistan, as in Mr Byrne’s example, he will have been recorded as entering under the category of “minister of religion”, and there will be no change in his status from then onwards. I recall a case some time ago where a Sikh who had entered the United Kingdom in some other capacity was then elected as a priest by his gurdwara, but was then refused leave to remain as a minister of religion because there is no provision in the rules for a person who has not previously worked as a minister of religion to change his status in that way. I refer noble Lords to Rule 174A of the Immigration Rules.

Therefore, I have to say that it was not clear to me what the circumstances were that Mr Byrne had in mind; but accepting that it is occasionally possible for a person to change from one status to another under the Immigration Rules, and that the rules may be amended from time to time, I suggest that we might add to the words in Amendment No. 17 a further provision requiring the holder of a BID to notify the Secretary of State when there is any change in his status under the Immigration Rules. Even this is a bit of gold-plating, because the immigration status of a person can change only if the Secretary of State grants permission, so the Secretary of State would already be aware of that change. Thus, for instance, a person who entered the United Kingdom as a proposed civil partner, and is then given two years leave to remain in that capacity, will have had to convince the Secretary of State that each of the 10 conditions in Rule 295D have been satisfied; so the Secretary of State will be well aware of his change of status.

The government amendments elucidate some of the conundrums in this clause though by no means all of them, and we are grateful to the noble Baroness—the former Minister responsible—for her letter explaining that these amendments are largely the result of the recommendation of the Delegated Powers and Regulatory Reform Committee that the Secretary of State’s powers should be aligned with their equivalents in the Identity Cards Act. The addition of the words at the end of paragraph (k) prevents the Secretary of State confiscating,

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for example, a person’s diary or address book. Amendment No. 16B helpfully spells out the cases in which the Secretary of State may cancel a BID, and partially satisfies our curiosity about the BID holder’s responsibility to notify the Secretary of State. I have a couple of questions on how paragraph (e) is supposed to operate. How will the hundreds of thousands of BID holders know that the Secretary of State has specified some additional circumstance requiring notification; what will be the penalties when a person to whom this circumstance applies fails to notify the Secretary of State, and will it be a defence to say that he was unaware of the new specification that had just been introduced?

Finally, I have a question about Amendment 19A. Section 3(2) of the Immigration Act 1971 is indeed the authority under which the rules are made. Is this deletion because the words are otiose?

Lord Hylton: I raise a point about Amendment No. 16 which I hope that the noble Baroness, Lady Anelay, has not already covered while I was briefly out of the room. Paragraph (k) refers to the Secretary of State requiring the “surrender of other documents”. “Other documents” is not explained, even in the Explanatory Notes. Does it include passports held by non-nationals which are still valid? If they are included and the Secretary of State acts on this, people could be left in a position of quasi-statelessness in this country, which would prevent them travelling to other countries.

Baroness Anelay of St Johns: It might be helpful if I comment on that. The noble Lord, Lord Hylton, is right to raise that question. He is getting at some of the issues that I tried to raise. I was trying to find out what other documents the Government might require to be surrendered. The noble Lord will be aware that during the passage of the Identity Cards Act we discussed at what time a passport would have to be surrendered in order for someone to be forced to have an ID card. What about the designation of other documents such as driving licences? What would have to be surrendered? I am grateful to the noble Lord, Lord Hylton, for raising that point.

Lord Bassam of Brighton: I am grateful to the noble Baroness for tabling her amendments. I am grateful, too, to the noble Lord, Lord Avebury, for spelling out his concerns.

Amendment No. 15 would fundamentally undermine one of the aims of the biometric registration scheme. We want to ensure that foreign nationals subject to immigration control and legally in the United Kingdom are issued with a biometric immigration document. These documents will act also as an identity card once they have been designated under the Identity Cards Act. If Clause 5(2)(e) were removed, the biometric immigration document could not be combined with an ID card. Therefore, when the Secretary of State decides to designate biometric immigration documents for the purposes of registration under the Identity Cards Act 2006, foreign nationals affected would have to carry two cards.

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Lord Avebury: Before the Minister leaves the point, perhaps I may say what mystified me. If one can designate with the ID card, there is no question of it being combined with another document, unless the Minister is saying that there is a blank identity card and the BID is merged into it. Why do the Government need to do this? Can they not simply designate the existing BID as an identity card under the Identity Cards Act?

Lord Bassam of Brighton: It will not be the existing BID that is designated as a document; it will be the second generation that becomes ID cards.

I turn to Amendment No. 16. The purpose of Clause 5(2)(k) is to enable the Border and Immigration Agency to require the surrender of old, less secure documents which currently serve as evidence of immigration status, such as immigration status letters—which can be forged—or vignettes. Our intention is to replace them with the secure biometric immigration document. Bleeding out insecure documents is a key contributor to tackling illegal working. Our intention is significantly to reduce the number of acceptable immigration documents issued by the Border and Immigration Agency to the biometric-enabled visa and the biometric immigration document.

Representatives from the NCP stated in the public evidence sessions in another place that good employers want us to reduce the number of different documents issued to foreign nationals granted leave in the United Kingdom. We intend to reduce these to two types of secure document: the biometric-enabled visa and a biometric immigration document. It has always been our intention only to require the surrender of immigration- related documents, which would include vignettes granting leave. We have therefore tabled Amendment No. 15A to make this clear in the Bill.

Noble Lords will know that we have tabled Amendments Nos. 16A, 16B, and 19A, to which the noble Baroness, Lady Anelay, referred, to address some of the concerns emanating from the Delegated Powers and Regulatory Reform Committee in respect of insufficient detail about the biometric registration scheme in the Bill. The noble Baroness has very honourably consulted a colleague in another place, Damian Green, and I fully understand why she cannot give a firmer commitment on the points covered by the amendments today. I respect her need to reflect further on their content.

The amendments set out in the Bill more detail about when the Secretary of State may cancel a biometric immigration document and when a holder may be required to notify the Secretary of State. However, they also reflect the fact that circumstances change and, for this reason, it is necessary to allow for additional circumstances to be specified in regulations, which will of course be subject to the affirmative procedure.

The proposed changes are designed to follow more closely the comparable provisions in the Identity Cards Act. There are certain differences because of the different immigration functions of the biometric immigration document. There will no longer be a power to suspend a biometric immigration document, because it is no longer needed.

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If the Secretary of State considers that she may have to cancel a biometric immigration document, she may require it to be surrendered to enable her to investigate further before making a decision to cancel it. This approach reflects similar practices for other types of secure document, including passports.

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The government amendments address the Delegated Powers and Regulatory Reform Committee’s concern about the circumstances in which the holder of a biometric immigration document would be required to notify the Secretary of State. We would clearly prefer this approach to Amendment No. 17, which could mean that the Secretary of State held out-of-date information about some biometric immigration document holders and their entitlements in the UK, and that the biometric immigration documents contained inaccurate information.

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