Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I beg to move amendment 10, in clause 20, page 14, leave out lines 19 and 20.

Anne Begg (Aberdeen South, Labour)

With this we may discuss the following: amendment 11, in clause 20, page 14, line 25, leave out

‘consent (which may be general or specific)’

and insert ‘specific consent’.

Amendment 12, in clause 20, page 14, line 29, after ‘relates’, insert ‘exclusively’.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

This is a new set of amendments in that they were not debated in another place. This is very much a continuation of our previous debate in the sense that we are seeking to achieve much tighter controls over the use and disclosure of customs information. This is one of the most serious weaknesses in this part of the Bill. We have all agreed that we are in favour of the principles behind it, but the problems with the clause illustrate both the practical and principled difficulties of moving in such a direction. There are a number of key questions that the Bill, as it stands, fails to address satisfactorily for us to avoid any abuse of the important personal data that will be shared between people.

The Minister knows the sorts of questions that are likely to be asked. Who will hold the data, for a start? Will they be held entirely inside UKBA or HMRC, or will they be held by private contractors if the data management is given to them? Will important personal data be held outside this country, as we have seen in some cases? There is no reason in principle why that should be any more or less secure than data held in the country, but is he aware from previous problems that when data that have been stored outside this country go missing, people feel even less secure than they do when they discover that they have been lost here?

Another important set of issues relates to proportionality. Are the data collected worth collecting in terms of the rewards that will come from the successful use of them? There can always be arguments along the lines of, “Well, if it helps to stop one serious criminal and solve one case, then it is worth while,” but we need to have a debate at a slightly higher level than that, and suggest that we introduce some kind of test of proportionality about the widespread collection and retention of important personal data.

The other issue that I hope the Minister will address is cross-referencing. In many ways, that is at the heart of the group of amendments and of the wider issue, about which my party and I feel very strongly. Across Government—more specifically, across the Home Office—many databases are being set up, each of which contains people’s most private and personal information. They are gradually being linked with each other. If the Minister has his way, the heart of the scheme will eventually be the national identity register. But even without that, there will be nothing left that cannot be collected by the Government and switched from database to database, searched by other parts of the Home Office and Government. He will recognise the genuine and increasing public alarm at that. Although each individual database  may be justifiable in some sense, it is the aggregation of all the information that rightly causes people to be increasingly concerned.

We want our amendments, particularly amendment 11, to be accepted so that they challenge that whole process and start reversing it. For example, amendment 11 would remove the phrase

“consent (which may be general or specific)”

and insert “specific consent”, which would exert much more control over what can happen to the data. Amendment 12 talks about “exclusively” relating to the information. Again, that would narrow the field where activity may happen. We also suggest leaving out subsection (2)(b), so removing the Secretary of State from the clause. We are seeking to ensure that any onward disclosure of personal information is approved by the individuals concerned.

I dare say that the Minister will argue that that kind of principle cannot be applied to criminals, as we need to be able to chase them. My response—which goes to the heart not only of this argument, but a lot of other arguments—is that the problem is that everyone in the country is now a suspect. Every individual is now being treated as though they are a potential criminal, and the gains for fighting crime that we might get from that approach are outweighed in the long run by the losses of turning every citizen in the country into a potential suspect, and treating them as such through the collection, dissemination and cross-referencing of information by the Government.

All of that would be true, and I would argue it just as strongly, even if I believed that the databases were 100 per cent. accurate and secure. However, the arguments that I advance are much stronger given the situation we are in, as we know that any large database inevitably contains a huge number of errors. Furthermore, as has been dramatically illustrated many times to the general public, none of those databases is particularly secure.

The Government, and some private operators, have an appalling track record when it comes to storing and securing personal data. Every breach of data security not only endangers the privacy of the individuals concerned, but inevitably costs the taxpayer thousands of pounds in investigations, internal reviews and potential litigation. If someone were to look at the matter dispassionately, they would ask whether the British state is the sort of body that should be allowed to collect and disseminate large amounts of private information. If the state were a private company that had to obtain a licence to do that sort of thing, it would have lost its licence by now as it is simply not fit to do it.

Last November, the Prime Minister said, in what I thought was a moment of blinding candour:

“We can’t promise that every single item of information will always be safe.”

He is right—practicality tells us that—but he does not go on to think about whether we should be collecting all that information and whether, through this part of the Bill, we should be allowing ourselves to collect information and supply it around the Government.

This is not a general complaint, it is specific to HMRC and some of the people who now work in UKBA and whose powers we are extending. November  before last, the Chancellor of the Exchequer had to reveal that HMRC had lost two discs containing the names, addresses, bank accounts and national insurance numbers of 25 million people. That was probably the most dramatic and damaging of all the data losses. Beyond that, the personal details of thousands of criminals have been lost—the names, addresses, details of conviction and even the jail release dates of 130,000 criminals were lost when a computer memory stick went missing. It was being used by an employee of PA Consulting, the firm at the heart of the identity card plans.

The Department for Transport has already featured in our debate, and the Driver and Vehicle Licensing Agency lost the details of 3 million learner drivers after a computer hard disk went missing. Perhaps worst of all, last year we discovered that the Crown Prosecution Service had lost a disk containing more than 2,000 DNA profiles received from crime scenes in the Netherlands for over a year.

Even when fighting crime, and introducing the sort of measures that the Minister will argue that the legislation is about, we cannot have much confidence in the Government’s ability to use efficiently the vast amount of private information that is being obtained to fight crime. There are many other examples with which I will not weary the Committee.

I hope that the Minister recognises the principle behind our argument. We should not simply be allowing ever-increasing amounts of data to be collected and ever-wider numbers of individuals or institutions within Government to pass that information between each other, without proper checks and without, at the very least, specific knowledge of why they are doing it, who is allowed to do it and who is allowed to give consent for it to be done. A couple of our amendments have concentrated specifically on that last point. General permissions should not be given such that whole classes of people can start exchanging the private information of British citizens. If there is a specific reason to do it, that is arguable, but specific, not general, consent has to be necessary.

As I observed in one of our debates this morning, it is easy for people to make general points about how Parliament should act in better ways to uphold the privacy of individuals in this country. It means, in practical terms, that we must get to the heart of the legislation to see whether another piece of the protective undergrowth is being cleared by small, apparently innocuous, parts of the Bill, which do not appear to be very much to do with personal privacy, and stop that happening. We are seeking to do that with our three amendments. I hope that Members on both sides of the Committee who actually care about privacy and the ability of people to keep information about them private will recognise the strength of the arguments behind the amendments.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

I fully support the amendments, and their intention to introduce tighter controls on the use and disclosure of information. Miss Begg, you will not have heard this morning’s deliberations on databases and so on, and I will not bore other hon. Members who have heard them at length today and on other occasions, but clearly there is an issue about the creation of very large, centralised databases and the control, security and disclosure of data. The amendments would ensure  that specific consent is sought, or that the data relate exclusively to an individual and would thus tighten up the procedures.

I shall digress briefly. This morning, many Members may have heard a story about mobile phones. At some point in the past, perhaps in response to a market research questionnaire, people may have failed to tick a box to confirm that they were not giving consent to having their mobile phone number held in a central directory. People who missed that box then found that their mobile phone number was available through that central directory. There are some similarities in flagging up the fact that consent may have been sought in relation to a specific exchange of data, rather than generalised consent that was given in the past—perhaps in circumstances slightly different from those that prevail now—and which has been forgotten about. Unless the Minister can give some strong reassurances that the amendments would serve no purpose, we may well be supporting the hon. Member for Ashford in his venture if he pushes his point harder.

Phil Woolas (Minister of State (also in the Home Office), Home Office; Oldham East & Saddleworth, Labour)

We seem to have come to a controversial part of the Bill, or at least to a controversial argument. The problem is that the argument is not about the clause. The clause is not about databases. It is about what permission HMRC and the Revenue and Customs prosecution officers need so that they can give customs and immigration officials information and what those officials need to give information to other agencies, such as courts.

Let us remember that the purpose of consolidating the existing powers in the new agency is to fight crime. By extrapolation, a police officer may have access to the fingerprint of a criminal. If my customs and immigration officials have apprehended someone they suspect, for customs and immigration reasons, to be a criminal, they would be allowed to share information with the police. The provision is about fighting crime, not about a Big Brother database. Indeed, we have added measures to existing powers and to the Bill to protect against such things as the hon. Gentleman is reasonably worried about.

I accept the point that, with technology, there could be creeping, unintended—if you take a different view, intended—interference in people’s privacy. I respect that point of view, but let me outline what the provision is trying to do and is doing, and not what it is being accused of doing. The danger is that we tie the hands of our officials so much that they do not have access to the intelligence information that they need to do their jobs. Our constituents would not forgive us if we were to get that balance wrong.

Sections 40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality framework applied to the use and disclosure of information that is provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office. That legislation has been debated and passed by the House. Clause 20, the amendments to which we are debating, introduces two new sections for insertion after section 41 of the 2007 Act. The clause enables Revenue and Customs and the Revenue and Customs Prosecutions Office to disclose customs information, including a relevant document or article, to a designated customs official; to the Secretary of State by whom general customs functions are exercisable,  or, in practice, their officers; or to the director of border revenue or—in practice—a person acting on their behalf for the purposes of the customs functions exercisable by them. The clause permits disclosure of customs information to the Secretary of State for his newly acquired customs functions and enables staff who currently work for HM Revenue and Customs, but will soon transfer to the UK Border Agency, to continue to receive relevant information for the discharge of their customs functions.

The clause also sets out the specific circumstances in which those who receive customs information supplied under the proposed new section 41A of the UK Borders Act 2007 may themselves disclose it to a third party, such as a court official. Wrongful disclosure of such information to a third party will be subject to the criminal sanction prescribed in section 42 of the 2007 Act. That critical assurance, which was sought in the debate on the 2007 Act, transfers to the Bill as well.

We believe that the agency must have the ability to use information that it receives from HMRC and the prosecutions office in order to do its job properly. There will be times when the agency needs to disclose information for the purposes of civil proceedings to ensure that it can fully carry out its customs functions at the border. That could, for example, include disclosure to the VAT and duties tribunal in the exercise of its customs revenue functions in relation to the export of goods from, or the import of goods to, the United Kingdom. That means that if the officers are aware of or believe there to be a transgression of VAT duty payment, they should be entitled to tell the tribunal. I do not see that as an infringement, but as a necessary civil law enforcement function.

Those key functions of the agency need to be protected. While such disclosures could arguably be made on occasions under proposed new section 41B(2)(a) of the UK Borders Act 2007, that would not always be the case. It is important to ensure that there is a clear and unambiguous power to make disclosures for civil proceedings, including those before the tribunal. Amendment 10 would cast doubt on the ability of UKBA to match such disclosures and would therefore have a negative impact on the ability of UKBA to do its job.

The position under amendment 11 would be similar. Revenue and Customs and UKBA will work closely together in the discharge of their respective functions. In particular, the agency will work with the Revenue and Customs prosecution officers in taking forward relevant criminal proceedings. Information sharing will be integral to that process, just as it between the police and the Crown Prosecution Service.

The ability to share information under the 2007 Act, in accordance with general consents given by HMRC or RCPO, will not lead to unrestricted data sharing but, rather, will enable a class of relevant information to be shared where that is appropriate. It would be impractical and hugely resource-intensive if, as amendment 11 requires, HMRC had to provide specific consent each and every time they supplied information to a person under section 41A of the 2007 Act. It would be paperwork. It would be form-filling. It would be tying up in unnecessary work the hands of the officials we are asking to protect our revenues and our borders. Amendment 11 is neither realistic nor desirable.

Lastly, it seems that amendment 12 is intended to clarify the fact that information may only be disclosed under proposed new section 41B(2)(f) of the 2007 Act when the person wishing to disclose it has the consent of the person to whom it exclusively relates. I want to assure the Committee that this is precisely the effect of the current drafting and reflects the existing practice of HMRC, RCPO, the Home Office and the agency, so the amendment is unnecessary. Although it is arguable that disclosure of information for civil proceedings would sometimes be possible under the new sections of the 2007 Act, that would not always be the case. Further, the inclusion of an express power to disclose for the purposes of criminal proceedings could cast doubt on the ability to disclose for the purposes of civil proceedings in the absence of an equivalent express power to do that.

The power to disclose HMRC information for the purposes of civil proceedings, whether in the UK or not, mirrors provisions in section 18 of the Commissioners for Revenue and Customs Act 2005, which enables HMRC to do their job. In short, the amendments arise from concerns about the integrity of databases and the purposes to which they are put. The clause is about the very pragmatic instances when our officials share information in order to apprehend crime or potential crime, whether civil in the case of duties, or crime in some of the customs functions. It is also about the ability of the agency’s officers to share that information with the justice system. In that respect, I believe that the amendments are a red herring, important principles though they raise.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

The Minister slightly gave it away in his last remarks when he talked about apprehending crime or potential crime. That is another of the catch-all phrases that Ministers have taken to using to justify ever-increasing intrusion. The potential to apprehend potential crime and to give the state the power to do that requires very severe restrictions, checks and transparency of the type that is not available. Every transaction is a potential crime according to that mindset. Ministers always come down on the side of, “If it might prevent a single crime in the future, then let’s do it. Let’s take these powers. Let’s exchange this information. Let’s give more people the power to access this information.” In a sense, I suspect that there is no point our debating the matter. We just disagree. I think it is a dangerous way for the Government to operate.

Phil Woolas (Minister of State (also in the Home Office), Home Office; Oldham East & Saddleworth, Labour)

The hon. Gentleman is painting a picture. We are talking not about customs and immigration officials being judge and jury, but about law enforcement. Just as a police officer needs access to intelligence about fingerprinting, say, to investigate a crime, if a customs official is faced with a bloke with a bag full of cocaine it might be useful to know from Revenue and Customs whether he owes money on a big tax bill. That is not being judge and jury; it is law enforcement investigation.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

But if he is in front of the officer with a bag full of cocaine, he will be arrested anyway, so that is not a particularly powerful example.

The Minister’s basic point is that this is just about law enforcement, not databases. However, in practice, these days, any collection of personal information and data is about databases, because all the information collected  under the clause will end up on a database. That is what the databases are for and that is why the data are collected. I am afraid that that is relevant. All the points that were made about the security of those databases and the ability of people to cross-reference databases are relevant to a clause such as this one in a Bill of the type that we are discussing.

The Minister said that he was worried about me—although he did not use the word “paranoid”, I think he thought that—being concerned about things being slipped through. I am fascinated by proposed new section 41B(1) and (2)(b), under which,

“A person to whom information is supplied under section 41A may not disclose that information...But subsection (1) does not apply to a disclosure...which is made for the purposes of civil proceedings (whether or not within the United Kingdom)”.

That is a powerful exemption that applies to any civil proceedings anywhere in the world, and that means that the protection that is written in does not apply. The Minister has yet to convince me that, without protection, that sort of exemption to the protection does not drive a coach and horses through his arguments about the provision being proportionate or, in some ways, necessary for crime fighting. By definition, civil proceedings do not involve criminal offences; otherwise, they would be criminal proceedings, which are covered in another part of the same clause. That is why we tabled amendment 10.

It is significant that much of the Minister’s response was about how the provision makes life easier for the institutions concerned to do what they do. I am sure that that is true. But overriding that should be the convenience of the citizens of this country, the vast majority of whom are not criminally inclined, are not going to smuggle stuff across the border and will not break immigration rules. The Minister and I disagree on a point of principle relating to where the appropriate balance is struck between personal freedom and personal privacy in this country and the ability of the organs of the state, including the law enforcement agencies, to do their job with what they would regard as the minimum fuss.

I am sure the Minister will be pleased to hear that I accept his point about amendment 12. If he assures me that what is in the Bill is not altered and strengthened in any way by the addition of “exclusively”, I am happy to accept that argument. Nevertheless, I do not accept his arguments on amendments 10 and 11, which I propose to put to a vote.

Paul Rowen (Rochdale, Liberal Democrat)

I have been listening carefully to the debate and I understand what the Minister is trying to achieve. However, as the hon. Member for Ashford said, the clause grants the ability to disclose information in respect of any civil proceedings. Were the Minister to define that, perhaps in a separate statutory instrument, and to say under what circumstances and for what purposes such information would be made available, he could reassure Committee members. That might be a compromise way forward that might reassure those of us with severe concerns about the overarching nature of the disclosure that the clause seeks to grant customs officials.

Phil Woolas (Minister of State (also in the Home Office), Home Office; Oldham East & Saddleworth, Labour)

I think I understand the hon. Gentleman’s point. There is not an overarching power; the Bill transfers what is currently the provision. A real case that came across my desk a few weeks ago provides a typical example of where information may be passed over. Cash had been found in someone’s suitcase at Luton airport and information was disclosed to a customs official that the person was wanted for alleged criminal activity and alleged tax avoidance. One must strike a balance. I cannot comment on the individual case too much.

If a legitimate activity is being undertaken—such as travel with an amount of cash—but there is reasonable suspicion that a person’s intent is either criminal, or civil if it relates to VAT and duties, it seems perfectly reasonable that the official should have the power to share information. That is not the same as the picture painted by the hon. Member for Ashford. He has had the good grace to say that it is a question of balance and I accept that. The next time someone from a tabloid newspaper phones up and says, “Why did the officials at UKBA let that person go?” I hope he will have the honesty to say that it was because he disagreed with the balance. That is the reality of the work that my officials do.

I do not accept the argument that there is a new power, new database or a new infringement or interference in anybody’s privacy. These are transfers of powers. I throw his argument back at him. If we were talking about a border police force, would he not want that police force to have these sorts of powers? Of course he would; otherwise, it would not be a police force. The House is right to scrutinise and investigate but we should get the balance right and give our officials the powers that they have already, and that they need under the new structures, to do their job to protect us.