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Baroness Hanham: We touched briefly on these amendments when we went through the clause stand part debates, but I turn now to a very important aspect, that of information which can be passed on by a designated customs official, and to whom. The amendments would impose a statutory obligation on any person listed in subsection (2) to have grounds to be satisfied that the disclosure of customs information to any other person is “reasonable”. That is a fair test of what one would want to limit this to. It would require consideration of the need for disclosure and the sensitivity of the information. My concerns have been raised because the Government’s track record on keeping a hand on personal data is not very good, if not to say abysmal. We are therefore concerned that strict controls should be placed on information that is

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being recorded and computerised, as well as data giving personal information about people who come into the orbit of these officers. I beg to move.

Lord Avebury: These amendments would tighten up the provisions in the Bill for the disclosure of customs information. Clauses 14 to 20 deal with the disclosure of information between customs and immigration, and Clause 14(1) creates new powers for the use of disclosure of information. Designated customs officials, immigration officers, the Secretary of State or another Minister,

the Director of Border Revenue and any other “person acting on behalf of” these people may use customs information that they have acquired through one function for the purposes of any of their other functions. Even more broadly, any of these people may disclose customs information to any other official for any exercisable function.

Once you give officials multiple functions, there is nothing to prevent them using information discovered or received under one function for the purpose of another. Allowing full disclosure between all immigration and customs officials goes even further. There needs to be proper justification for allowing complete information sharing and use between HM Customs and Revenue on the one hand and the Immigration Service on the other.

We have also had representations from the Law Society of Scotland which suggests that information subject to legal professional privilege should be expressly protected from the general disclosure provisions in these clauses. We would like the Government to explain whether, and if so to what extent, information subject to professional legal privilege is protected under the Bill and how this is to be specified.

Baroness Miller of Chilthorne Domer: The data sharing issues raise considerable concerns, some of which have been outlined by the noble Baroness, Lady Hanham, and by my noble friend Lord Avebury. The first stop when things go wrong is quite rightly the Office of the Information Commissioner. Given the increased amount of data sharing that is going to take place if the Bill goes through in its current form, may we know, first, what representations, if any, the Information Commissioner’s department has made to the Government about the Bill and what advice it has been given? Secondly, given the inevitable amount of extra work that will result from this, what extra resources are being given to the Office of the Information Commissioner, which is now severely stretched through having to deal not just with issues of data loss but also inappropriately used data? It is the one office in the entire rather gloomy data picture at the moment that does command public confidence, and I commend the Information Commissioner on developing the office as a repository of public confidence. But to continue in that role, it needs to be properly resourced.

The Government made a bit of progress when they accepted that the Information Commissioner should be able to make spot checks on public bodies and that there should be a system of penalties for officials who

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contravene any of the data protection provisions. But in order to put any of that into force, the commissioner and his office need to be properly resourced. I have strong concerns in that direction.

6.45 pm

Lord Brooke of Sutton Mandeville: I rise to ask a question which is wholly incidental to these amendments. Is it a term of art or is there a matter of policy which causes in subsection (2)(c),

to appear halfway through the list below a designated customs official or an immigration officer? These officers have been set out in a rather curious order, so as a matter of curiosity I am inquiring into whether there is a reason for it.

Baroness Hanham: I am sorry to rise again, but I think that the Minister may need to get a reply to this point. Perhaps I may address him to Clause 14(5), which relates to disclosure of information. It states:

“This section is without prejudice to”.

What on earth is the definition of “without prejudice” in this context? Who is the prejudice towards, and if there is no prejudice, why specify “without prejudice”? I know that it is a legal term which crops up fairly often, but I do not know why it is included here. I shall be extremely grateful for a reply.

Lord West of Spithead: Clause 14 will provide the border force with the ability to pool its customs information internally so that any such information acquired by a person to whom the clause applies can pass it to another person to be used for that other person’s function. The clause also permits any such person to disclose customs information to another person to whom the clause applies for any function exercisable by the recipient. This will enable the UK Border Agency to use its resources as effectively as possible by improving targeting and data matching across the full range of its immigration and customs functions. It will also improve customer service as it will prevent the agency having to request information from people more than once.

Amendments 23 and 24 would prevent those to whom Clause 14 applies from using or disclosing customs information, whether personal or not, unless satisfied that such use or disclosure is reasonable. However, customs information may be used only by a person to whom Clause 14 applies for one or more of the functions that he or she has been given, and if that person needs to use customs information for the exercise of any such function, I believe that by definition the use of it will be reasonable. Further, any use of information under Clause 14 would also be subject to the provisions of the Human Rights Act 1998 and the Data Protection Act 1998, and would thus be required to be both reasonable and proportionate.

The noble Baroness, Lady Miller, asked how much the Information Commissioner would be involved in this. I am not aware of how deeply he was involved in the discussion of the Bill, and I have the Bill team

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finding out if he was or was not. But, as I have said, this is covered by the provisions of the Human Rights Act and the Data Protection Act, so in the sense that it is covered, it means that obviously he will have an interest and a certain authority to supervise that the Act is being complied with.

I turn now to the disclosure of customs information. The data sharing framework established by Clauses 14 to 21 restricts the disclosure of personal customs information; that is, customs information that identifies or is capable of identifying the persons to whom it applies. I think that in that sense it applies to legal privilege. However, I shall get back to the noble Lord, Lord Avebury, on the particular point. It is absolutely right that the provision is protected in this way in the Bill.

Amendments 23 and 24 would restrict the disclosure of non-personal customs information such as statistical data. Those statistical data are crucial in informing policy development and refinement and there is no need to restrict their disclosure provided they go only to those people who need them for the functions they have been given.

Meanwhile, disclosure of personal customs information is tightly circumscribed under the Bill. Clause 15 imposes duties of confidentiality in respect of personal customs information generally and personal customs revenue information. The limited exceptions to those duties are set out clearly in Clause 16 and any disclosure made in accordance with those exceptions would certainly pass any test of reasonableness.

On the points made by a number of speakers about data protection, there have been bad examples in the past but the Government have now got to grips with the issue. The great danger for all of us is that we go down the route of thinking that we must not use data. If we do not use data, we will not get all of these efficiencies. The world has changed; we cannot turn back the clock. Certainly now, with the Cabinet Office review and the work going on across government, we are gripping the issue. However, this is not only a government matter; it is also a private one. People will need a complete mindset change to understand how important data are and how easy it is for people to get hold of their data. It is something that we all have to get to grips with but, as I say, the Government have learnt their lesson and are frantically trying to do this. But we are dealing with human beings, and sometimes private individuals are not very good at looking after their own data even. It is a big learning process and we have to go through that.

On the point made by the noble Lord, Lord Brooke, the list has been produced by parliamentary draftsmen. There are no policy implications but it is slightly extraordinary. I might dig a little deeper into that. It is like always having the Royal Navy to the right of the line. If someone put it the other way round I would be more than a little surprised. Lists have quite a significance sometimes.

The noble Baroness asked why the phrase “without prejudice” is used. As she rightly pointed out, it is a legal term. Apparently it ensures the continued application of existing provisions concerning confidentiality, and that is why it has been put into the Bill.

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I think I have covered all of the questions. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Hanham: Before the Minister gives up completely, there seems to be a lacuna in the list which I hope he can fill. I come back to my “trinity”. Of the three individuals, subsection (2)(a) refers to a “designated customs official”, who I think is a part of the trinity. Is that correct? There is then an immigration officer, who is not a part of the trinity but an individual, and we do not have a customs and revenue officer or a general customs officer whose individual functions form the other parts of the trinity. Perhaps the Minister can explain.

Lord West of Spithead: I should make it clear to the noble Baroness that I never give up completely. In the bulk of these posts people will be capable of carrying out the duties of both immigration and customs. As I understand it, they will be a part of the border force immigration officers and will be able to carry out both functions. But not everyone will be designated. A small number of people will be left with specific responsibilities—dog handlers, for example—who, although they will be in the border force, will be customs officers focusing purely on the dog handling aspect. Rather than being a trinity, the designated customs officers are a duality of immigration and customs officer. I think that is the case but perhaps I may come back and clarify the situation before the next stage. We are aiming to ensure that the bulk of the people involved are capable of carrying out the customs and immigration functions. If we achieve that with each of the officers, it will give us huge flexibility and allow us to do so much more.

If there is some confusion in the text as to exactly how they are named, I shall make sure it is clarified. However, that is what we want the bulk of the people to be able to do and the detail we are looking at here is designed to enable that to happen within the correct legal and administrative constraints.

Baroness Hanham: I thought we had clarified earlier who all these people were. We have a customs revenue officer, who has been transferred down from Her Majesty’s Revenue and Customs; we have a general customs officer, who has been passed down from Her Majesty’s Revenue and Customs; and we have an immigration officer. Many hours ago we established that those three positions could be either what I termed the trinity, or they could be individual immigration officers who just do immigration, individual customs officers who just do customs, and individual revenue officers who just do revenue—but all of these duties could be combined into one and so one person could do revenue, customs and immigration. If that is not correct, then I have misunderstood the whole of the last seven pages.

Lord West of Spithead: The only thing wrong with that is that there is not an individual revenue officer. There are customs and revenue officers, who we want to be able to be immigration officers, and there are immigration officers, who we want to be able to do customs duties; we do not have purely revenue officers. That is what I meant by a duality rather than a trinity.

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Baroness Hanham: Clause 11—“Designation of customs revenue officials”—states:

“The Director of Border Revenue may designate ... any other official ... by whom general customs functions are exercisable, as a customs revenue official”.

That seems to mean that a customs officer can also be a revenue officer or can be both, one or the other. Earlier we had the designation that a general customs official, who comes from the customs, can be a revenue official. So we have established that two are going into one, and the immigration function makes it three into one.

Somebody needs to clear this up because either I am going to extremely confuse the Committee, or I am extremely confused, or the legislation is extremely confused. I would hate it to be the latter. We need to be extremely clear what we are talking about because, on the point that I have just raised about the designated customs official, the revenue official will not be allowed to have any say in the information coming down under Clause 14.

Lord West of Spithead: I want to make absolutely certain that what I said was correct. We have customs and revenue officers; we do not have revenue officers. There is no such thing as a revenue officer; they are customs and revenue officers. We want to train officers from within Her Majesty’s Revenue and Customs to do immigration. We hope that will be done in the border force and that the immigration officers will be trained to do revenue and customs duties. So that is how we will make them all the same. But there are only two skills; there are no separate revenue officers. I think that is where the confusion lies.

Baroness Miller of Chilthorne Domer: I cannot resist the thought that it must be lovely to be a dog handler.

Baroness Hanham: I shall leave the matter for the moment. I am deeply unconvinced, which is not a position I usually find myself in when dealing with the Minister. But as this is germane to this part of the Bill, perhaps someone will be extremely kind and send me a note of how this is working out so that we can put it on record somewhere sometime. Otherwise, the confusion will continue. I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendment 24 not moved.

7 pm

Amendment 25

Moved by Baroness Hanham

25: Clause 14, page 9, line 21, leave out paragraph (f)

Baroness Hanham: Amendments 25 and 26 would limit the people to whom disclosures may be made to designated customs officials, immigration officers, the Secretary of State by whom general customs functions are exercisable, ministers in his or her department and the Director of Border Revenue. Amendment 26 probes why restrictions in Part 1 or in other enactments or

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agreements—I refer to subsection (3)— should not apply to the disclosure of other information as well as customs information.

We have discussed the track record of the Government and we feel that Clause 14 should be drawn as narrowly as possible. I beg to move.

Lord West of Spithead: I am afraid again I must resist this amendment. The UK Border Agency or the border force must have flexibility to respond to the ever-changing challenges of protecting our borders. From time to time, the agency will need to use contractors to support and supplement its own staff. It is only right and proper that where the agency needs to do that, the contractors concerned should be able to use and disclose any customs information in so far as that is necessary for them to fulfil their contractual obligations. Any such contractor will be subject to the provisions in the Bill regulating the use and disclosure of customs information, including Clause 18, which establishes a criminal offence of wrongful disclosure. Existing arrangements between the UK Border Agency and its contractors already include provisions to protect information and regulate the circumstances in which it is used and disclosed. Contractors in breach of these confidential provisions face the appropriate action, which could include dismissal, termination of contract and, of course, prosecution.

I regret that I must also resist Amendment 26 because it is unnecessary. Clause 14 applies, and is intended to apply, to the use and disclosure of customs information only. Clause 14(5) is intended to clarify, and the removal of that clarification would be likely to cause confusion as to the type of information to which Clause 14 and the wider provisions in the Bill dealing with the use of disclosure of information apply.

It may be that the intention underpinning Amendment 25 is to ensure that Clause 14 and the wider data-related provisions that I have referred to, apply to immigration, asylum and nationality information as well. Such information has never previously been subject to a distinct disclosure regime, but is regulated instead by the provisions and safeguards in the Data Protection Act 1998 and the Human Rights Act 1998, which I have already referred to, and we do not propose any change to that approach now.

Even if I have correctly identified the intended purpose of Amendment 25, it does not achieve that purpose in practice. The removal of Clause 14(5) will make no practical difference to the circumstances in which immigration, asylum and nationality information may be used and disclosed. I therefore believe that Amendment 25 is unnecessary. For those reasons, I hope that the noble Baroness feels able to withdraw her amendment.

Baroness Hanham: I am grateful to the Minister for that reply. It is reassuring that contractors will be covered by the same codes of practice and the same standards. I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendment 26 not moved.

Clause 14 agreed.

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Clause 15 : Prohibition on disclosure of personal customs information

Amendment 27

Moved by Baroness Hanham

27: Clause 15, page 10, line 36, leave out subsection (5)

Baroness Hanham: This would remove the exemption from the prohibition of disclosure of personal customs information where the information was obtained by means other than exercising customs or customs revenue functions. The definitions are in Clause 36.

We are concerned that the transfer of functions to officials allowed by Part 1 blurs the appropriate boundaries for the sharing of information around government departments. I beg to move.

Lord West of Spithead: Again I am afraid I must resist this amendment. The statutory duty of confidentiality in Clause 15 seeks to protect personal customs and personal customs revenue information from disclosure, except in the limited and defined circumstances where disclosure is specifically permitted. This reflects the fact that such information, which may include taxpayer information, should be protected from disclosure in the same way as that information is protected by Her Majesty’s Revenue and Customs. Therefore when the border force acquires such information, it will be subject to the statutory duty of confidentiality, unless it is clear that it acquired the information other than in the exercise of the customs function or customs revenue function.

However, immigration, asylum and nationality information has never been subject to a distinct statutory confidentiality regime, and therefore, we do not think it appropriate or necessary to impose the same duty of confidentiality in relation to this information as applies to personal customs and personal customs revenue information. When the UK Border Agency acquires information in the exercise of its non-customs functions, such information is protected from unlawful disclosure by the provisions and protections inherent in the data protection and human rights legislation. I hope that the noble Baroness feels able to withdraw this amendment.

Baroness Hanham: Again, that is a reassuring reply and I thank the Minister for it. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Clause 15 agreed.

Clauses 16 and 17 agreed.

Clause 18 : Offence of wrongful disclosure

Amendment 28 not moved.

Clauses 18 to 21 agreed.

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