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12 July 2007 : Column GC227

Grand Committee

Thursday, 12 July 2007.

The Committee met at two o'clock.

[The Deputy Chairman of Committees (Baroness Turner of Camden) in the Chair.]

UK Borders Bill

(Third Day)

The Deputy Chairman of Committees (Baroness Turner of Camden): Good afternoon. I have to tell the Committee that Clause 8 has already been amended.

Clause 8 [Use and retention of information]:

Lord Bassam of Brighton moved Amendment No. 25A:

The noble Lord said: This group of amendments intends to make it clear that the provisions in Clause 8 governing the use and destruction of information apply only to biometric information collected under the biometric registration provisions, rather than biographical information such as a person’s name, address, reason for applying for leave and suchlike. The amendments also make it clear that the destruction provisions of the clause apply only to biometric information held by the Secretary of State. I shall address those two aspects in more detail.

Under Clause 8, the regulations must make provision about the use of biometric information. In addition, Clause 8(3)(a) and (b) provides for when both biometric and non-biometric information must be destroyed. The amendments will ensure that the provisions requiring destruction of the information in Clause 8 apply only to biometric information. Biometric information, we recognise, is of a more sensitive nature than biographical information. That is reflected in the previous immigration Acts. The existing immigration legislation has always expressly provided for when this type of information must be destroyed, and it is right that it should.

However, the type of biographical information which the Secretary of State will collect under these provisions is of a different nature. The Secretary of State already requires individuals to provide biographical information—such as name, address, reason for applying for leave and suchlike—when a person makes an application for leave to enter or remain in the United Kingdom. That type of information is protected by current law. The Secretary of State always handles that information carefully and it is always subject to the safeguards of the Data Protection Act 1998 and the Human Rights Act of the same year. One of the key principles of the Data Protection Act is that personal data must not be kept longer than is necessary for lawful purposes.

A person will have to provide the same type of non-biometric information when he or she applies for

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a biometric immigration document, because the document will be the way in which the person is authorised to stay in the United Kingdom in future. As previously mentioned, it is likely that a single combined application form will be used for both the application for leave and the application for the biometric immigration document. Just as the Data Protection Act and Human Rights Act provide robust protection for this type of information when the person applies for leave, those Acts will provide the same high level of protection for the rights of the person when they apply for a biometric immigration document. We do not believe that it is necessary or desirable to make provision for the destruction of biographical information in Clause 8 in addition to the extensive protection provided by current law.

Let us look at the second element to the group. The amendments will also mean that the destruction provisions in Clause 8 will apply only to biometric data held by the Secretary of State. Where the Secretary of State shares information with a third party—for example, the police—the sharing of the data will be governed by the Data Protection Act and the Human Rights Act. We also expect that third party to process the information in such a way as to protect the rights of the data subject, where that is provided for in data protection legislation. So, for example, when data are shared with the police for crime prevention purposes, the police are under their own obligation to comply with the Data Protection Act in how they handle and retain that information. They are also obliged to comply with the Human Rights Act, particularly the right to respect for private life. Accordingly, when the Secretary of State has lawfully shared information with, for example, the police, we think that the obligations which govern how the police use that information provide sufficient safeguards, without the need for the Secretary of State to be subject to a separate obligation under Clause 8 to ensure that the data passed to and therefore held by the police are destroyed. I beg to move.

Baroness Anelay of St Johns: As we begin the third day in Committee on this Bill, as the Minister introduces yet more amendments to the Government’s own Bill on biometric registration documents, it is right to reflect that Government’s policy over security has been in some disarray over the past week or so. That has been revealed by such issues as the progress, or egress perhaps, of Muktar Ibrahim, the leader of the gang that brought fresh terror to our streets just a fortnight after bombs killed the 52 travellers in July two years ago.

At the beginning of the debates on Second Reading and in Committee, we put on record our concern that the Government were trying to fiddle around at the edges while not approaching security in the right way. Muktar Ibrahim was able to leave the country to travel to Pakistan, having been stopped and questioned by Special Branch officers at Heathrow. They were acting on a request from MI5, which had followed a car in which Ibrahim was a passenger to the airport. He was allowed on his way, even though he aroused suspicion, because he had

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£2,000 in cash, claimed to be attending a wedding—although he did not know whose wedding—and had cold-weather mountain gear in his luggage.

It also emerged that Hussain Osman, another of the convicted plotters who came to Britain in 1996, claiming to be a Somalian, was in fact an Ethiopian who had been living in Italy. When he came to the UK, when his Italian visa ran out and he claimed asylum, his application was turned down; but in 2004 he was given discretionary leave to remain. After his failed bomb attack on the underground, he fled to Italy, travelling unchallenged through the Waterloo Eurostar terminus despite the biggest manhunt in British history.

In the same week, we have seen reports that the head of Interpol has complained that the UK was failing to check visitors against a database of stolen passports. We appreciate that the Prime Minister, Gordon Brown, told Sky News last Sunday that the Government were looking at the issue as a matter of urgency. They should be not only looking at the matter but doing something about it.

It behoves the Government to have dealt with those matters before they considered bringing forward this Bill. We shall continue to scrutinise the Bill with great care but we continue to be of the mind that a lot of its proposals will not provide the solution. I am sure that at Report we shall have to come back to some of the major issues about other ways in which to deal with these matters. In the mean time, we do not oppose the government amendments. I merely observe wryly that at this late stage they have sought to make what appear to be rather basic practical amendments.

Lord Avebury: The noble Baroness, Lady Anelay, has raised some extremely important matters, although I am not sure that they are immediately germane to the amendments or to Clause 8. Mr Muktar Ibrahim, for example, would not be covered by the provisions in Clause 5(1), even if it had been enacted in time for his exit and re-entry into the United Kingdom.

Baroness Anelay of St Johns: The noble Lord is absolutely right in saying that my remarks are not germane to the amendments. I am simply using them as a means of reflecting at the start of the third day out of five in Committee that there other methods by which to address this matter. If the Government had been minded earlier to accept proposals from the noble Lord’s party as well as mine with regard to UK border police being established and a much better system of scrutinising passports, much of this Bill would not be required, including some of the provisions to which the noble Lord has much objection.

Lord Avebury: We will definitely return to these matters on Report. The case of Mr Muktar Ibrahim will be one that we will look at in relation to the border agency which both the noble Baroness, Lady Anelay, and we think would be a better solution than the one in the Bill.

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To return to the amendment moved by the Minister, we were grateful to the noble and learned Baroness, Lady Scotland, for her letter of 22 June which explained, as the Minister did again this afternoon, that these amendments are intended to make it clear that Clause 8 applies to the use, retention and destruction of biometric information obtained through regulations made under Clause 5(1) and not to the non-biometric information, which, as the Minister has already explained, is already covered by the Data Protection and Human Rights Acts. In her letter, the noble and learned Baroness added that, subject to those Acts, the Government would share the BID information, including biometrics, with others, including government departments.

The provisions regarding destruction of the biometric information required by Clause 8(3) include provision for the destruction of copies. I hope that the Minister is paying attention to this because I will ask him a question which is of some importance. As I said, there is provision for the destruction of copies unless under Clause 8(4) the information is retained in accordance with and for the purposes of another enactment.

What enactment do the Government have in mind? There would not be any enactment which would already refer to the biometrics. Therefore, I am assuming that the Government have in mind some future hypothetical use to which the biometrics might be put by a person other than the Secretary of State. I would be grateful if the Minister could elucidate that question. Under what enactment might copies be retained since they could not have been referred to in any existing enactment? What sort of purposes do the Government have in mind which would require copies of the biometric information being retained, when the originals in the ownership of the Secretary of State would have to be destroyed under Clause 8(3) regulations? That is an important point because there is no purpose in destroying the parent biometric information if multitudes of copies can be retained by other persons to whom the Secretary of State has transferred them.

Lord Roberts of Llandudno: I have three questions. My noble friend Lord Avebury, drew attention to the database. When we proceed to a national database following the introduction of identity cards, how will that apply to the destruction of biometric information? If information is on a national database, will it not be retained in one way or another?

Secondly, what distances are involved in the interview areas? I know that certain recommendations have been made, such as 25 miles. How confident is the Minister that there will be access to this centre for interviews?

Finally, we know that there are problems with personal interview procedures for passports—I have mentioned that once or twice before. Of the 69 personal passport interview officers, only two are effective at the moment. How confident is the Minister of the success of this scheme to collect biometric information? Is he confident that the whole system will support the measures outlined in the Bill?

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2.15 pm

Lord Bassam of Brighton: I congratulate the noble Baroness, Lady Anelay, on using a convenient amendment that happens to be passing by to give the Committee the benefit of her party piece, and I understand why she is doing that. She is quite entitled to do so.

One can have the best border police service in the world, but there is always a likelihood or possibility that something will be missed. My guess is that our friends in America would think that they have a fairly robust system, yet they suffered one of the worst terrorist outrages that has ever been visited upon any country in the world—9/11. I am sure that they have improved their processes since then. I am confident that we have done so, and that what we are putting in place through this legislation will improve matters. I have greatly enjoyed some of the support that we have received from the noble Baroness’s party and from other parties to improve the way in which Customs, police and immigration services can work together through the Border and Immigration Agency and the border management programme to ensure that we have more robust procedures in place.

My right honourable friend the Prime Minister made it plain the other day that he was less than satisfied with what had happened with regard to the convicted terrorists and the movement of some of them. He was right to draw attention to that in the way that he did. We will have to ensure that vigilance is maintained. Some of the errors were perhaps of an operational nature. Even if some of the measures proposed here had been in place, there may well have been some gaps—who can be absolutely sure? For that reason, the Prime Minister quite rightly wanted to ensure that matters were properly reviewed. We try and make progress. We try to ensure that that law is right. We think that these measures are right and proportionate. We keep things under review and, no doubt, we will return to the issues raised by the noble Baroness, not just today, but on other occasions.

The noble Lord, Lord Avebury, asked about the use of powers allowing the retention and destruction of biometric information. Clause 8(4) enables biometric information to be used or retained under the Identity Cards Act, even when a person becomes a British citizen. I know that the noble Lord was concerned about those issues and, no doubt, he will continue to be concerned, but it is right that we have those powers so that we can act on the information that they obtain. The noble Lord, Lord Roberts, asked how confident we are that biometric information can be collected. We are entirely confident, as I have explained on a number of occasions. We have already had successful experience of collecting biometrics from visa applicants. We will make use of the possibility for the incremental rollout of bids to pilot and test the process to ensure that the project is implemented as successfully as the fingerprinting of visa applicants.

The noble Lord asked how confident we could be of access to interview centres. We are looking at the best options to achieve a target of reasonable travel to these centres. The noble Lord will be well aware that I

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have explained on a few occasions that we continue to look at the possibility of mobile units. I think that that system will work well. I congratulate the noble Lord on raising the issue at every opportunity. The rollout programme has been explained to him in the past and we have placed in the Library of the House some of the more refined details. I hope that that answers the noble Lord’s points. I am grateful for the comments made in this debate.

Lord Avebury: I do not want to prolong the debate unnecessarily, but if the Minister will forgive me for saying so, he has not actually answered my question, which was very specific. Copies are made of the documents that are under the control of the Secretary of State. They are transferred to other persons, such as other government departments and, as the Minister has mentioned, the police. The regulations will specify under what circumstances and at what point the biometric documents under the control of the Secretary of State will be destroyed.

I asked the Minister whether he could explain what the other enactments are that are referred to in Clause 8(4). If such enactments are to be put before your Lordships in the future, we should know about that. This is a purely hypothetical provision to cater for some unforeseen eventualities, and not for something that the Government have in mind at the moment. I wanted the Minister to explain what sort of purposes were envisaged under which these copies would be retained by some other person to whom the Secretary of State had transferred them after the destruction by him of the parent records.

I do not expect the Minister to give me an immediate answer because he may not have access to the information but, as he has been so assiduous in writing to Members of the Committee after every Grand Committee sitting, perhaps I could ask him to include that in the letter he writes after today’s.

Lord Bassam of Brighton: I am happy to do so. Much of the regulation for information sharing, data sharing and so on is governed by data protection and human rights legislation. As the noble Lord knows, by and large the retention of this information will be for law enforcement purposes. I do not have anything I can tell him about what other purposes we might envisage that information being retained for, or the legislation we might have in mind.

Lord Avebury: What are the other enactments?

Lord Bassam of Brighton: I will write to the noble Lord and ensure that those data are circulated to other Members of the Committee.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 25B to 25G:

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On Question, amendments agreed to.

Clause 8, as amended, agreed to.

Clauses 9 to 13 agreed to.

Clause 14 [Penalty: prescribed matters]:

Lord Bassam of Brighton moved Amendment No. 25H:

The noble Lord said: The amendment is designed to address concerns raised by Members of both Houses and by the Delegated Powers and Regulatory Reform Committee about the level of scrutiny of the code of practice for the biometric civil penalty regime. We provided a commitment to review the existing clause. The amendment reflects a similar provision in the Identity Cards Act and will mean that the first code of practice will come into force subject to the affirmative procedure, and any subsequent changes will be made by the negative resolution procedure. The code of practice will set out how we intend the sanctions under Clause 7(2) to operate. I also undertake to place copies of the draft code in the Library of both Houses. I beg to move.

Lord Avebury: Clause 14 deals with the code of practice covering the penalties that may be imposed on a person who fails to comply with any of the regulations to be made under Clause 5(1). The amendment clarifies the first code of practice for determining whether to impose a penalty on a person who fails to comply with any of the regulations made under Clause 5(1) and, if so, the matters to be considered in determining the amount.

The code may require the Secretary of State to consider the non-financial penalties that may come into play automatically under Clause 7, or they may be imposed at the entire discretion of the Secretary of State. I noticed the extensive powers granted under that paragraph more recently than I should have done. We may have to return to Clause 7(2)(e) on another occasion because it is a very sweeping power.

The provisions in Clause 7 may have a drastic effect on a person’s life. For example, the withdrawal of leave to enter may cause a person’s university studies to be terminated or his leave to remain here for employment to come to an end, wrecking his future career. In view of that, I should be grateful for an assurance from the Minister that the code will require any decision made under Clause 7 to be considered when deciding whether a fine should be imposed and, if so, by how much.

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Lord Bassam of Brighton: The advice I have is that the two penalties which could be imposed for an immigration offence or a civil offence will not be applied at the same time. That will be made clear in the code, as will the circumstances in which penalties will be applied. The sensitivities which the noble Lord draws to the Committee’s attention will be well understood and the circumstances he describes will be covered by the way in which the code operates.

Lord Avebury: Again I am sorry to prolong the proceedings but the noble Lord has not answered my precise question. The penalties are described in Clause 14, and the code which covers the penalties may require the Secretary of State to consider the non-financial penalties in Clause 7. My question to the Minister was whether, instead of giving the Secretary of State the option of considering the penalties under Clause 7 when deciding whether to impose a financial penalty, the code would oblige him to do so. The penalties which may come into play under Clause 7 could have a devastating effect on the lives of the persons concerned and should be taken into consideration in deciding whether to impose a financial penalty.

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