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The list omits key situations in which we want the biometric immigration document holder to tell us about a change in circumstances—for example, breakdown in relationship or other factors which could impact on eligibility to remain in the UK.

The noble Lord, Lord Avebury, made some comments about the purpose of allowing a biometric immigration document to be combined with another document. I am happy to give some further consideration to what he said. I have already explained some of the detail about the types of document that the Secretary of State will require to be surrendered. We may well require individuals to surrender their passport to enable an existing vignette or stamp to be cancelled, with the passport being returned when the BID is issued to replace the old vignette or stamp. Those are the sorts of circumstances in which we might want to do that.

We will fully and amply publicise any changes to the circumstances in which a holder of a biometric immigration document is required to notify the Secretary of State so that people are aware.

Lord Avebury: What happens if someone does not notice that changes to the notification requirements have been advertised, say, on television? What would be the penalty if someone missed the announcement, as people do? Everybody knows that whenever the Government make an announcement, thousands of people, completely inadvertently, will not read it in the Times or see it on the BBC News and do not look at the web. A great many people never look at the news. What happens when the person who is required to notify the Secretary of State under some change specified in the Bill fails to do so? What are the penalties? Will it be a defence in any proceedings against them for failure to do so that they were unaware of the change that had been made?

Lord Bassam of Brighton: There are a couple of points there. We would be in a position to communicate directly with a BID holder. When the BID is issued, we will also provide details about notification procedures. Obviously, the noble Lord is right that there will always be people who miss particular points, but we will do all that we can to ensure that they are as few as possible.

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Lord Dholakia: The Minister was helpful, because in the earlier question on Clause 5(2)(e) my noble friend raised a specific matter and the Minister did not offer the necessary clarification. He said that he would certainly write to us on this. Will he take into account the comment made in the other place by Mr Byrne in response to a question put by Damien Green? He said:

“we have been clear in our intention to designate the cards as ID cards as soon as the national identity register comes online. That is important, because doing so will provide migrants who are here legitimately with the additional protections on which Parliament rightly insisted in the Identity Cards Act 2006. The second problem is that if we accepted the amendment, migrants in this country with biometric immigration documents would have several bits of identity. That is problematic, because the whole thrust of our policy is to bleed out those documents”—[Official Report, Commons, UK Borders Bill Committee, 8/3/07; cols. 240-41].

That is contrary to what the Minister was saying. Will he look at that in responding to the question of my noble friend Lord Avebury? Perhaps he could come back to us after that.

Lord Bassam of Brighton: I think that is consistent with what I said. We want to reduce the number of documents that people have to hold. I cannot see the inconsistency here. We have a careful process for ensuring that a BID holder can have access at a later stage to a proper and full identity card.

To finish one of the points about notification requirements, if someone has missed the announcement of a change in circumstances, we will be sensitive and will think very carefully before imposing any sanction. We have to operate the system reasonably.

Lord Avebury: I am sorry to repeat myself, but I should like to clarify the point at issue on the designation of BIDs as identity cards. Mr Byrne, the Minister in another place, told the Public Bill Committee that the BID would be designated under the Identity Cards Act as an identity card, whereas the Bill says that the Government want to merge the BID into another document. I asked the Minister whether that meant that there would be a blank identity card into which the BID would be merged. That was my hypothetical explanation for that provision. The Minister did not answer that question. My noble friend tried to repeat the question by quoting Mr Byrne. How does the Minister reconcile what Mr Byrne said in the Public Bill Committee with what the Bill says about merging the BID with another document? He need answer not now but some time.

Lord Bassam of Brighton: Sorry. I am very keen to be as helpful as I can. I do not think that what I said was inconsistent with the explanation that the Minister in another place gave. The noble Lord, Lord Avebury, is close, but has not quite understood the position, which I will set out clearly, because I do not want there to be confusion on this.

Lord Hylton: In contrast with the weighty issues that have just been discussed, I would like to raise a low-key drafting point about government Amendment No. 16B, which says, no fewer than 12 times,

“if the Secretary of State thinks”.

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I expect that the Minister is well aware that this expression has been severely criticised on other Bills. The wording would be much improved if it said, “if the Secretary of State is satisfied”. While that is being considered, could the Government also consider whether it is necessary to repeat the same phrase 12 times?

Lord Bassam of Brighton: The explanation is that plain English has been used to draft that clause rather than history. It is designed to be very clear.

Lord Hylton: The point is that it is not satisfactory. Parliament is not satisfied with thinking, which is subjective, whereas “is satisfied” means that the Minister has considered the matter properly, has taken everything into consideration, and has come to a conclusion.

Lord Bassam of Brighton: I would argue that “is satisfied” is also subjective, but there we go. This is a debate for another time, and one that should probably come under the general heading, “Linguistics”.

Baroness Anelay of St Johns: This one always comes around. I remember a brief that I had five years ago. It was one of those occasions on which the Leader gives you the good news that you have a fascinating new brief—home affairs. The other news is that the first Bill is in 10 days and it is an immigration Bill. That was the 2002 Bill. I admit to the noble Lord, Lord Hylton, that when I saw similar government drafting in that Bill, I tabled a series of amendments on exactly the same lines as his. I was not trying to be helpful at all to the Government. I did not see this at all as a matter of linguistics or drafting, but as a way of trying to ensure that there was a much tighter way of looking at the whole procedure and holding the Secretary of State to account. It is often very healthy to ensure that, if the Secretary of State takes powers to himself, it is a matter not of what he thinks but of being satisfied so that he provides evidence. I know that we have had this argument for the past five years and that we will keep returning to it. I am sure that the Government, like all Governments, want drafting that removes so far as possible any possible element of legal challenge to the action taken by the Secretary of State.

I am grateful to all noble Lords who have taken part in the debate, but I am particularly grateful to the noble Lords, Lord Avebury and Lord Dholakia, who have tried to assist the Government to reconcile two statements. I am glad that they did, because that was the absolute intention behind my Amendment No. 15. I became extremely confused when the Minister talked about the way in which the identity card would supersede the BID, because I am not sure that this is a matter of language. It could be a substantive difference in process, and I do not think that the Government mean it to be. My understanding is that combining documents means that the two documents are different and are put together. The Minister explained initially that there would be one document—the BID—which would be discarded later and superseded. If one document is superseded, the first is discarded. New technology comes in and we have the biometric immigration

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document. However, that is not what the Bill seems to provide. We need to look again at that, although I will not rehearse the arguments that we have already had.

There is certainly confusion in my mind. It may simply be that there is misunderstanding on this side of the Committee, but I suspect that there is not. I suspect that we may simply need to consider better drafting, or perhaps the Government will pursue a process of rolling out ID cards to which some may object. The noble Lord, Lord Avebury, and I may find ourselves on different sides of the argument at that stage. I may support the Government in the way in which they want to roll out identity documents for those who are subject to immigration control. Whatever our view, however, we need to know what the process is and whether it will be effective and proportionate.

I am grateful to the Minister. As I said, I will consider the Government’s responses to my Amendments Nos. 16 and 17. Having heard the Minister today, I think that we will be satisfied, although I cannot give that assurance. I am sure that I will have to come back on Report on Amendment No. 15, but I look forward to receiving any further information between now and then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 15A:

Clause 5, page 3, line 37, leave out paragraphs (g) and (h)

The noble Lord said: I put on record my gratitude to the Delegated Powers and Regulatory Reform Committee for its observations on Clause 5(3)(e) and (f), which prompted us to reconsider the paragraphs. We tabled Amendment No. 17A in response. The committee recommended following Section 126 of the 2002 Act in specifying in the Bill that PACE codes will apply to authorised persons registering biometrics. However, having looked carefully at the PACE codes, we do not consider them to be appropriate for the biometric registration provisions in this Bill. Indeed, there is no provision in the Identity Cards Act 2006 that requires authorised persons to have regard to a code when registering a person’s biometric samples, such as fingerprints. This is because we did not want the legislation to have a sense of criminality, or for applicants to feel that they were being treated as citizens under suspicion.

The same therefore applies to this legislation, as it is not our intention to criminalise foreign nationals, but simply to issue secure, reliable documents establishing their immigration status and identity. For this reason, my amendment removes references to a code. However, we want to ensure that the process of registering biometrics is carried out properly. We will publish practice guidance to which persons authorised to register biometrics must adhere. For those reasons, I beg to move.

4.45 pm

Baroness Anelay of St Johns: It is most unusual to say this at this point, but it may be helpful. As a result of having heard the Minister address questions that I was going to raise under my Amendments Nos. 18 and 19, I give notice that I will not move them.

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Lord Bassam of Brighton: I am most grateful to the noble Baroness for that. There are other amendments in the group, and I will address those as we progress.

Lord Avebury: I am not altogether sure that I understood what the Minister said. He repeated what we have already been told by the noble and learned Baroness, Lady Scotland, in her letter, when she explained that this matter was to do with the point raised by the Delegated Powers and Regulatory Reform Committee and the purpose was to follow the Identity Cards Act more closely. Removing these two paragraphs means, as the Minister has explained, that the code to which authorised persons must have regard has disappeared. The Minister simply told your Lordships that this would be replaced by practice guidance. What the code might have contained and what the practice guidance might contain could have been identical. Neither of them would necessarily have referred to the PACE codes of practice. The replacement of the code by practice guidance does not have any bearing on the explanation which the Minister, and the noble and learned Baroness, Lady Scotland, gave us in the letter. I am left slightly uncertain as to why simply replacing the code by practice guidance has the effect which the Minister explained in the letter and again this afternoon.

Lord Bassam of Brighton: It is consistent with the position that we explained in another place. We are trying to ensure that practice is advised by guidance and to avoid a situation in which people feel potentially tarnished by association with the PACE codes in any way, shape or form. That is the simple explanation.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 16, I advise the Committee that, if this amendment were to be agreed to, I would not be able to call Amendment No. 16A because of pre-emption.

[Amendment No. 16 not moved.]

Lord Bassam of Brighton moved Amendments Nos. 16A and 16B:

Clause 5, page 4, line 4, at end insert “connected with immigration or nationality”

Clause 5, page 4, line 4, at end insert—

“(2A) Regulations under subsection (1)(a) may permit the Secretary of State to cancel a biometric immigration document—

(a) if the Secretary of State thinks that information provided in connection with the document was or has become false, misleading or incomplete,(b) if the Secretary of State thinks that the document has been lost or stolen,(c) if the Secretary of State thinks that the document (including any information recorded in it) has been altered, damaged or destroyed (whether deliberately or not),(d) if the Secretary of State thinks that an attempt has been made (whether successfully or not) to copy the document or to do anything to enable it to be copied,(e) if the Secretary of State thinks that a person has failed to surrender the document in accordance with subsection (2)(i) or (j),

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(f) if the Secretary of State thinks that the document should be re-issued (whether because the information recorded in it requires alteration or for any other reason),(g) if the Secretary of State thinks that the holder is to be given leave to enter or remain in the United Kingdom,(h) if the Secretary of State thinks that the holder’s leave to enter or remain in the United Kingdom is to be varied, cancelled or invalidated or to lapse,(i) if the Secretary of State thinks that the holder has died,(j) if the Secretary of State thinks that the holder has been removed from the United Kingdom (whether by deportation or otherwise),(k) if the Secretary of State thinks that the holder has left the United Kingdom without retaining leave to enter or remain, and(l) in such other circumstances as the regulations may specify.

(2B) Regulations under subsection (1)(a) may require notification to be given to the Secretary of State by the holder of a biometric immigration document—

(a) who knows or suspects that the document has been lost or stolen,(b) who knows or suspects that the document has been altered or damaged (whether deliberately or not),(c) who knows or suspects that information provided in connection with the document was or has become false, misleading or incomplete,(d) who was given leave to enter or remain in the United Kingdom in accordance with a provision of rules under section 3 of the Immigration Act 1971 (c.77) (immigration rules) and knows or suspects that owing to a change of the holder’s circumstances the holder would no longer qualify for leave under that provision, or(e) in such other circumstances as the regulations may specify.”

On Question, amendments agreed to.

[Amendment No. 17 not moved.]

Lord Bassam of Brighton moved Amendment No. 17A:

Clause 5, page 4, line 19, leave out paragraphs (e) and (f)

On Question, amendment agreed to.

[Amendments Nos. 18 and 19 not moved.]

Lord Bassam of Brighton moved Amendment No. 19A:

Clause 5, page 4, line 33, leave out “(immigration rules)”

On Question, amendment agreed to.

[Amendment No. 20 not moved.]

Lord Avebury moved Amendment No. 20A:

Clause 5, page 4, line 38, at end insert—

“( ) The Secretary of State may issue a code of practice relating to the issuing of biometric immigration documents by UK Visas providing—

(a) the maximum processing times and maximum costs for biometric immigration documents;(b) the minimum level of service that visa applicants could expect from UK Visas and their partners; and(c) any other guidance that he deems appropriate.”

The noble Lord said: The current plan is that a person who wants to enter the UK from outside the EEA area even for a couple of days will require a

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biometric visa, as we discussed earlier. However, if a person wants to stay here for six months or less, they will not have to apply for a BID, at any rate initially. The Minister in another place said that there had been debates about whether that period should be reduced to three months, but so far as I know, those discussions have taken place behind closed doors in the Home Office and not in either House of Parliament. We would like to know what the arguments are for reducing the period from six to three months and we would like to be given a chance to join the discussion.

The vast majority of ordinary tourists come here for three months or less, so it would be hugely expensive to force them all to get BIDs unless the Government are planning to make the holders pay for them, which might be something of a damper on the tourist market. This is the first occasion on which I have had to ask the question: is there any suggestion that persons applying for BIDs will be charged, and will the charging regime be what it has been in some other cases recently, where the Government have been putting up the fees; that is, charging a sum that recovers more than the total cost of providing the service? What is the estimated cost of the document and how exactly is it to be paid for? Also, where has the discussion about three months or six months got to? Does the Minister agree that when we reach the Report stage, we should add words to Clause 5 to provide that no one who is given leave to enter the UK for six months or less will be asked to apply for a BID? Rather, if it is necessary, the Secretary of State could, by order subject to the approval of Parliament, require the period to be reduced from six months to three.

The Minister, Mr Byrne, also said in the Public Bill Committee that UKvisas would not issue BIDs because they were only for long-term entrants. That is a non sequitur. There are several categories for which initial leave to enter may be for longer than six months and for which it might make sense for UKvisas to do the job. Although its performance has been abysmal, the latest report by the UK entry certificate monitor shows that it has been making improvements.

It would make sense for UK monitors to issue BIDs for investors, persons wanting to establish a business, innovators, writers, composers or artists, who can be initially admitted for two years, so that the BIDs could be issued together with their visa in their country of origin. Other categories for which that would be appropriate are retired persons of independent means and—the largest category of all—students coming to attend courses at our universities, who are given leave to enter for more than the six months that we discussed earlier. Like the other medium-term entrants mentioned, they will all have to be fingerprinted for their biometric visa. Polishing off the BID at the same time would save trouble and expense. Universities are already voicing concern about the UK becoming less competitive, and we should be doing everything possible to reduce the bureaucracy faced by overseas students, which can be a strong deterrent.

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I entirely agree with what my honourable friend the Member for Rochdale said about the past performance of UKvisas. Maybe the answer would be to allow the Secretary of State to make regulations requiring UKvisas to accept applications for BIDs for categories to be determined by order. I am trying to be helpful and to reduce the work required to issue the BIDs. I hope that the Minister will find this a useful suggestion. I do not expect an immediate answer, but I hope that, in the course of our proceedings, he will be able to discuss it with his officials and let me have his views. I beg to move.

Lord Hylton: Once again, the noble Lord, Lord Avebury, has, with the benefit of his encyclopaedic knowledge, put his finger on some important matters. As a relative beginner in these difficult areas, I would only ask why, if a non-national already has a biometric visa and is coming to this country only for a short period—however “short” may be defined—he should need a BID as well.

Lord Bassam of Brighton: We think that the amendment is misconceived because UKvisas will not issue biometric immigration documents. Although UKvisas issues biometric visas, they are issued at posts abroad under existing legislation. Biometric immigration documents, on the other hand, will be issued in the United Kingdom, initially to foreign nationals, those subject to immigration control who have made a successful in-country application to the Border and Immigration Agency. However, in future, that may include other foreign nationals who are subject to immigration control. Fees for in-country services are set by the Secretary of State with the consent of the Treasury, and the regulations prescribing those fees are laid before Parliament and are subject to the negative resolution procedure.

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