Clause 97 - Physical data: compulsory provision
Nationality, Immigration and Asylum Bill
10:00 am

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Mr Humfrey Malins (Woking, Conservative)

I beg to move amendment No. 302, in page 48, line 27, leave out paragraph (g).

This is a gentle and probing amendment. The clause is extremely general. In simple terms, it says that the Secretary of State may make regulations requiring information. The devil will be in the detail when we see the regulations in due course, and I hope that we will have an opportunity to discuss them. Subsection (4) sets out what regulations under subsection (1) may do, but paragraphs (a) to (i) are extremely general. For example, paragraph (i) states that the regulations may

''make different provision for different cases or circumstances.''

We could hardly object to that in principle, but we would like to know what it means in practice.

The amendment would delete paragraph (g), which states that the regulations may

''make provision about the use and retention of information provided (which may include provision permitting the use of information for specified purposes which do not relate to immigration)''.

It is early days and the regulations have not been drafted, but will the Minister say what that may mean? At first glance, it is a wide power and there is a possible objection—if not today, perhaps in due course—to the use of such important and sensitive information for purposes that do not relate to immigration. Will she tell us how wide the regulations will be, and although this is an early stage, for what other purposes the information might be used? She will recognise that if there is not a fetter or bar on the extent to which the information can be disseminated or used, there may be problems ahead.

Simon Hughes: There are equal concerns and slight mystification among the Liberal Democrats, specifically about subsection (4)(g). Organisations have made representations to us and, I would imagine, the Government. They include Liberty, which, I should declare, has its headquarters in my constituency, and the Immigration Law Practitioners Association. We will come to other issues about the mechanism for parliamentary approval of regulations and so on, but I want the Minister to explain the key issue of why information provided by travellers for immigration control should be used for purposes that do not concern immigration control. Otherwise, I am not sure that I can sign up to it.

We have not yet examined holistically the question of what information should move from one Department to another. The issue of transfer of information between public organisations appears more and more, especially in this Bill from clause 100 onwards. There are questions such as to whom we assent that information should be transferred when we give information voluntarily or it is taken from us compulsorily. I start from Liberty's point of view that the state should hold the minimum amount of information on me, that I should know what information is held, that I should be alerted that it is held and be able to check it, and that it should not be transferred to other people without my knowledge.

The Labour Government have been guilty of adding more and more powers to the state to obtain and to transfer information. This country is such a Big Brother state that I fear it is almost irrevocable, yet everything has been done on the basis of a good case made in a particular Bill on a particular day. We must be very careful to ensure that every provision that justifies more information going to the state is widely supported and seen to be acceptable. I should like the Minister to explain why this provision is necessary, but in any case the issue will return in different guises in subsequent clauses.

10:45 am
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Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I want to explain the background to our thinking on the clause. It enables the making of regulations that would require a person applying for a visa or entry clearance or for leave to enter or remain in the United Kingdom to provide certain data with their application. The data that may be required extends to external characteristics, including the features of the iris; the developments in new technology provide many new ways of identifying people. We are trying to introduce automated verification of identify through those developments, which can assist UK immigration control. I emphasise that the developments are at an early stage but we envisage that the scheme will apply to certain categories of people seeking to enter or remain in the UK.

There was an earlier discussion about some of the difficulties with regard to fraud and it is important that new technology is used to increase the detection of fraud while at the same time, another benefit of the technology is that it will increase the number of people who can be processed quickly. The hon. Member for Bexhill and Battle mentioned the long queues at

passport control; the new technology will help to alleviate such problems and make life easier for many people, especially frequent travellers, who will be able to enter the country more quickly.

The hon. Member for Woking referred to paragraph (i), which relates to different cases or circumstances. Flexibility is needed because circumstances may change in respect of the categories of people from whom we want the information. Questions were also asked about how the information will be collected and used, and who will know about it. The amendment would remove the reference in subsection (4)(g) to provisions on the use and retention of information, including for purposes other than immigration control. It would not limit the scope to include such provisions in regulations, as the list in subsection (4) is not exhaustive, but it would remove the reference to other purposes.

We believe it proper that information could be used for other purposes. The most obvious reason that springs to mind is the prevention of crime. Limiting our ability to use data would be inappropriate and not in the best interests of us all, including many vulnerable people who are used by those who participate in organised crime. That is partly why we want the ability to use information in other circumstances.

It may provide reassurance if I say that any exchange or use of data collected under the powers will be subject to the safeguards in the Data Protection Act 1998, and that any provision allowing the use of information other than for immigration purposes will be set out in regulations, transparent and open to parliamentary scrutiny. I re-emphasise that we are at an early stage of developing the proposals, but I hope that hon. Members accept that passing the amendment would limit the use of information for proper purposes, particularly in relation to crime.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I am afraid that I am absolutely not persuaded. If there are good reasons for using the information, such as the prevention of crime, they should be explicit in the Bill. The measure is ridiculously widely drawn—exactly the sort of provision that should not be in legislation. We have not seen the draft regulations, so we can take no comfort from them, and even though there is some protection under the Data Protection Act, the provision is unacceptably wide. Unless the Minister can provide a much better explanation and an undertaking to amend the provision by Report stage to define the limitations in the Bill, I shall have no option but to vote against it, continue to oppose it and seek to persuade the other House to remove it.

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Mr Humfrey Malins (Woking, Conservative)

I do not feel as strongly as the hon. Gentleman about the amendment, which I tabled, but if I beg to ask leave to withdraw it, it may be that it cannot be voted on. I understand that there will be regulations and I accept the need for them. The clause is terribly widely drawn, which is of concern to us all, but we are debating in a slight vacuum, because we do not know what the regulations will say. The purpose of the amendment is to put down a marker that we shall return to the issue with some vigour when we see the regulations. I think that we had a ministerial assurance

that we shall have enough parliamentary time to examine these matters more carefully. That is satisfactory for today.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

On a point of order, Mr. Hurst. Before the hon. Gentleman finishes winding up, I want to clarify whether, if I insist on pressing the amendment to a vote, it will be possible to have one, irrespective of his different view.

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Mr Alan Hurst (Braintree, Labour)

One objection to withdrawal will trigger a vote.

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Mr Humfrey Malins (Woking, Conservative)

We may be in a position to proceed on the basis of an objection to my withdrawal. I am pleased that I tabled the amendment. It has provided a peg for an interesting and important debate. We shall return to these matters, which require close scrutiny, later. I hope that the regulations will appear sooner rather than later. I beg to ask leave to withdraw the amendment.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

No.

Question put, That the amendment be made:—

Question accordingly negatived.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I beg to move amendment No. 316, in page 49, line 5, leave out from 'shall' to 'House' and insert

'not to be made unless a draft has been laid and approved by resolution of each'.

This is a straightforward amendment, designed to change the mechanism for dealing with regulations from possible to automatic. It would guarantee Parliament that the regulations will return for scrutiny. They are important enough to justify such automatic parliamentary scrutiny.

Photo of Ms Rosie Winterton

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I am afraid that we cannot accept the amendment. It is intended that any regulations made under the powers in the clause would, for the most part, mirror the divisions contained in sections 141 to 143 of the Immigration and Asylum Act 1999, which was subject to full debate. The affirmative resolution required by the amendment is unnecessary. It remains open to discussions within parliamentary procedure.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

With this sort of amendment, Ministers do not normally give in on the first round.

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Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

If at all.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

They are normally forced to give in by the House of Lords.

11:00 am
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Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

Very democratic.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

It is undemocratic only because Labour has made it so. A way forward is now clear

and we hope that it will be predominantly democratic soon.

I shall not detain the Committee further. By the end of our proceedings we shall have an idea of which regulations are most important, most in need of review and most requiring of automatic parliamentary scrutiny. I repeat my request to Ministers: can they ensure that drafts of all the regulations are published as soon as possible? The Minister said that she shared that view and saw that as being helpful. As we are due to finish the Committee stage next Tuesday, I hope that we can have the regulations either by the end of next week or at least more than a couple of days before Report.

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Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

I think that the hon. Gentleman may have misunderstood a move of my head and interpreted it as he wished. We certainly will not have the draft regulations written by next Tuesday. It would be wrong for him to go away with the idea that they are in detailed form and are just waiting to be published. They are not.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I would never wish to misinterpret the Minister. I would far rather that we disagreed. That is fine in terms of explanation, although not in terms of policy making. Parliament breaks up next Friday for an unusually long recess of two weeks. That is to do with the jubilee. I understand that it is also because half the Cabinet thought that the holiday week was before the jubilee weekend and the other half thought that it was afterwards and they booked their holidays accordingly. That may be entirely untrue.

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Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

They are going to Disney.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

Yes, or going skiing. In any event, we have a two-week holiday. I hope that Ministers can tell us before the Committee reports on Tuesday when they expect to publish the draft regulations. I understand that they will not be ready then, although was an earlier indication that they would be available as soon as possible. We should not go to Report stage without having seen the regulations. I hope that the Ministers and their civil servants will do their utmost to ensure that we have enough time to read them, so that we can table amendments. I may ask my colleagues in the Whips Office to take the matter up with the business managers.

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Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

It is important to emphasise that work on this area is at an early stage. It is not likely that any scheme will be proposed until next year. That is part of the difficulty in trying to work to the timetable set by the hon. Gentleman. When we know more about the scheme we will be able to proceed as he suggests.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

When we come to the end of Committee stage, perhaps Ministers could drop us a line to tell us which regulations they can let us have in draft before Report, so that we can express our happiness or unhappiness, and which will be available in draft form before the Bill leaves the Commons. I understand what the Parliamentary Secretary just said. Of course, some regulations are a long way down the track, but it would be helpful to know which are imminent. As the hon. Member for Woking said, we need to see some of them before we can form a

judgment about what is proposed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I beg to move amendment No. 317, in page 49, line 16, leave out 'includes, in particular' and insert 'are'.

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Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to take amendment No. 319, in clause 99, page 49, line 42, leave out 'includes in particular,' and insert 'are'.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

These are amendments to clauses 97 and 99 and pick up the point that the Minister has just made about the clause as a whole. The new technology of eye identification gives more accurate personal recognition than fingerprinting. That is fine and good—all credit to the scientist and others who devised it—but our amendments seek to ensure that we are specific rather than general. The clause states that

'' 'external physical characteristics' includes, in particular, features of the iris or any other part of the eye''.

In a straight reading of English, that could mean any external physical characteristics. We know about identification using the features of the iris or any other part of the eye; the amendment is a probing one to discover whether the Government have any other plan up their sleeve.

One could contemplate the amusing as well as the serious side to the issue: not everyone would readily assent to immigration officers and others taking an interest in external physical characteristics in general. We need to be specific about what we are talking about. We are used to fingerprints, and we are willing to sign up to iris identification, which seems based on good scientific analysis. The Government should tell us if they have other means of identification in mind, but if they have nothing more in mind than fingerprints or eye characteristics, we suggest that the provision is limited to those specific examples and a portmanteau phrase is not slipped through.

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Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I think that I can be a bit helpful. As I have stressed, the development of the proposals is at an early stage; I am sure that the hon. Gentleman appreciates that technology is constantly and rapidly changing. We have not, therefore, taken firm decisions about whether the data should take the form of an iris scan, a facial image or fingerprints. New developments may appear that indicate that one form is more accurate than another, so I cannot accept the amendment. However, I reassure the hon. Gentleman that when the regulations are issued, they will specify the type of data that will be collected. It would be inappropriate to define that in primary legislation.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I am happy that the Government are committed to ensuring that specific information is included in legislation, even if it is secondary legislation. I will take advice on whether people outside the House who have an interest think that that is sufficient, but I understand the argument. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I wish to make two brief points. First, the clause is important, for the reasons that I stated earlier. It allows for information to be compulsorily obtained. It would be helpful if the Minister circulated to hon. Members—I do not ask her to read out the information now—details about the current protections under all the data protection legislation against information collected here being passed on without authority.

I welcome subsection (5), which specifies that regulations must provide for the destruction of information obtained or recorded and

''require the destruction of information at the end of the period of ten years beginning with the day on which it is obtained or recorded''.

That is, one can ask for the record of one's fingerprints or eyes to be destroyed 10 years later so that there is not a permanent Big Brother file. My question is, if I ask for the file containing my fingerprints or the image of my iris, and someone refuses to provide that data, what can I, the citizen, do? What is my remedy, and what are my guarantees? If someone refuses, what offence do they commit and can they be punished? I am keen to know whether the citizen can enforce the rights given in legislation.

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Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I do not have the specific answer. The protection under existing legislation on access to information would apply, at the same time as the balance against data protection. The hon. Gentleman may be talking about someone residing elsewhere, so I will need to check the details. I am happy to write to him.

Question put and agreed to.

Clause 97 ordered to stand part of the Bill.