‘(1)A person specified in subsection (2) may disclose information obtained or held in the course of his functions to a person specified in subsection (2A) if he thinks that the information is likely to be of use for a purpose specified in—’.
With this it will be convenient to discuss the following:
Government amendments Nos. 36 to 41, 43, 45, 48 and 49.
‘(2)Before issuing a code the Secretary of State shall—
(a)consult the Information Commissioner
(b)after that consultation, publish a draft code
(c)consider any representations made about the published draft, and lay a draft code before Parliament.’.
Amendment No. 101, in clause 33, page 18, leave out line 7 and insert—
‘(4)The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—’.
Had the general election not intervened, the drafting of the Bill, given a little more time, could have been tidier. The purpose of our amendments in this group is to clarify and tidy the Bill’s structure. They will make the Bill’s relationship with other legislation that governs the security services more logical and sensible.
The original drafting of clause 32 allows for travel or freight information for security and intelligence purposes to be shared. The amendments give the border agencies a discretionary power to disclose travel and freight data to the security and intelligence agencies for specified purposes: national security, economic well-being and support in combating serious crime. The original provisions allowed the reciprocal sharing of data, but we can inform the Committee that those provisions are not necessary, because existing powers in the Security Service Act 1989 or the Intelligence Services Act 1994, which enable the security and intelligence agencies to disclose data to the border agencies for certain purposes, are sufficient. Therefore the two-way process does not need to be included in the clause, because the existing legislation—namely, those two Acts—allows for the transfer of data back the other way.
As a consequence of the amendments, the code of practice on data sharing no longer applies to the clause. Amendments Nos. 48 and 49 remove references to clause 32 in clause 33, which relates to the code of practice.
Amendments Nos. 36 and 37 allow for information to be disclosed if it is likely to be of use for any of the purposes specified in section 1 of the 1989 Act or sections 1 and 3 of the 1994 Act. Those are the same purposes that I mentioned a moment ago. I hope you will agree, Sir Nicholas, that those are tidying amendments.
I shall now speak to the amendments that have been grouped with the Government amendments. I am sure that the hon. Member for Manchester, Withington (Mr. Leech) will want to make his own comments. It seems appropriate at this stage to put some of our thinking on the record. Amendment No. 100 would create a three-tier process for the code of practice for the one-way transfer of information.
The hon. Gentleman envisaged three tiers in that process: first, that there would be consultation with the Information Commissioner; secondly, that following consultation a draft code would be published; and thirdly, that the Government should consider any representations made about the published draft and lay a code before Parliament.
On each of the points that the hon. Gentleman raises, we can give him some comfort that steps have already been taken or will be taken, according to the Bill as drafted. We have already worked closely with the Information Commissioner on the production of the framework code of practice, which the hon. Gentleman may have had a chance to look at. On 13 October, we published an outline framework for a code of practice on data sharing, in accordance with clause 31 of the Immigration, Asylum and Nationality Bill, between the immigration service, the police service and Her Majesty’s Revenue and Customs under e-borders. I recommend that document—with its simple and snappy title—to the hon. Gentleman as a riveting read. It sets out the principles by which we are taking this process forward. I assure him that we have been working closely with the commissioner on its production.
The hon. Gentleman will know that the commissioner has responsibility for ensuring that the principles of the Data Protection Act are upheld, and we are mindful of those principles. The Home Office will continue to work with the commissioner’s office in the production of the subsequent documentation related to the clause.
The hon. Gentleman’s second point was that a draft code should be laid before it is finalised. I refer him to clause 33(2)(a), which states that a code
“shall not be issued unless a draft has been laid before Parliament.”
I think that that takes care of the hon. Gentleman’s point. People would, of course, be able to make representations on the draft.
With those assurances, we urge the hon. Gentleman to withdraw his amendments, although I will expect him to make further points in the course of the debate. The Government amendments to the clause are simply tidying and clarifying amendments to ensure that the Bill, if it is to become an Act, will work properly and fit neatly into the existing legislation that governs the activities and work of our security and intelligence services.
As the Minister correctly anticipates, when I heard the words “tidying and clarifying”, that led me to raise a couple of points that I would like the Minister to tidy up and clarify. They are not complicated matters.
I believe that I am right in thinking that amendments Nos. 43 and 45 are consequential on amendments Nos. 40 and 41. However, if the people mentioned in those amendments are under no duty to share information, surely there can be no order specifying the information that they must share. It is therefore unclear to me why amendment No. 43 does not also delete subsection (3)(c), which states,
“which relates to such other matters in respect of travel or freight as the Secretary of State may specify by order.”
That subsection appears to be left hanging with the deletion of subsection (3)(b).
It is also worth asking what the effect of deleting subsection (4)(b) will be. Will the Minister respond to those two points?
Likewise, on Government amendments Nos. 48 and 49, and despite what the Minister said, I again presume that their purpose is to take information sharing for security purposes under clause 32 out of the code of practice. I am still unclear why that has been done. As nothing in the clause imposes a requirement to report on how the code of practice is used or could otherwise require the security services to disclose information, why are the amendments necessary?
Moving on, I have two small queries. First, the drafting in this subsection limits it to information provided by the Secretary of State
“in so far as he has functions under the Immigration Acts”,
a chief officer of police, and Her Majesty’s Revenue and Customs. Would there be any other Government agencies to which it could apply or be extended, such as information held by housing departments, the Department of Health or the Department for Education and Skills? Why is it limited to those three and not a broader category of operations?
In clause 28 the Government amendment added all vehicles to these categories and yet that does not seem to have happened in this area. I wondered whether for the sake of tidiness or keeping everything in order vehicles should be considered as a potential addition to this group under subsection (3)(a).
Lastly, I happened to glance at the long title of the Bill. It may not be a matter for now but as freight happens to be mentioned specifically under the clause, I wondered whether orders relating to freight are within the long title of the Bill as it stands. [Interruption.] The Minister is saying from a sedentary position that they are, but it is always worth checking at this stage and getting the answer from the ministerial team.
Perhaps I may deal with the hon. Lady’s last point first. It came up this morning. It is important to reiterate that the movement of freight is relevant to our considerations. As my hon. Friend the Minister of State made clear, there can be circumstances where freight movements involve people, but the movement of freight can also provide information about immigration issues or policing matters. That is why it is included. As he said, parliamentary counsel has satisfied us that it is within the scope of the Bill. I am happy to give her that assurance.
I am grateful for the hon. Lady’s probing on the tidiness or otherwise of the clause as it is left. First, she asked why subsection (3)(c) is not deleted, given that (3)(b) is to be removed and the persons referred to in subsection (2)(d) to (f) have been deleted. It is not deleted and the clause is not untidy as a result because, as with clause 31, it is necessary to say what information can be passed from the border agencies to the security and intelligence services, where that does not fit in clause 32(3)(a). It is necessary to give further clarification on that point.
The hon. Lady also asked about the effect of leaving out subsection (4)(b). The subsection is unnecessary as this is no longer a two-way gateway. The Bill, as drafted, was about creating a two-way operation whereby information could pass in both directions. As amended, the Bill is a one-way street and the process in the other direction is now removed. The security and intelligence services have sufficient legislation to cover their operations—that is taken care of—so the provision is not needed.
The hon. Lady also asked whether the clause could be extended to other agencies, such as housing. We are considering whether it may usefully be extended to others in future but it is primarily concerned with the capture of data as it affects the cross-border movement of people. That is why it is so constructed. If there were a case to be made in the future, we would give thought to it, but at this stage it is right to limit the scope of the Bill and the clause as proposed.
I think I have covered most of the points raised by the hon. Lady. She asked about vehicles; the only relevant vehicles are those on ferries, which would be covered under passengers and freight, and vehicles coming through the channel tunnel. The Bill, especially the sections that relate to aircraft and vessels, does not mention trains. Trains passing through the channel tunnel are governed by separate legislation, and we shall lay out in an order flowing from that legislation similar provisions to those in the Bill in respect of other transport movements.
“leave out ‘and aircraft’ and insert ‘, aircraft and vehicles’.”
For clarification, keeping in line with clause 28, I thought if the proposal did include vehicles it might be helpful. I was just tidying up.
I am very grateful to the hon. Lady. I thought that it would be useful to explain more broadly why the proposal is so drafted. The order relating to channel tunnel traffic will come in due course. “Vehicles” are the classes of vehicles that I mentioned; I am grateful to the hon. Lady for giving me the opportunity to clarify what is meant by that. Vehicles coming through the channel tunnel will be dealt with in secondary legislation. For the purposes of the Bill, vehicles on ferries are covered under passengers and freight.
I hope with that clarification that I have answered the hon. Lady’s legitimate questions.
Amendments made:No. 36, in clause 32, page 16, line 44, leave out ‘a function specified in’.
No. 37, in clause 32, page 16, line 45, leave out ‘a function specified in’.
No. 38, in clause 32, page 17, leave out line 1 and insert—
‘(2)The persons who may disclose information in accordance with subsection (1) are—’.
No. 39, in clause 32, page 17, line 4, at end insert ‘and’.
No. 40, in clause 32, page 17, line 6, leave out paragraphs (d), (e) and (f).
No. 41, in clause 32, page 17, line 8, at end insert—
‘(2A)The persons to whom information may be disclosed in accordance with subsection (1) are—
(a)the Director-General of the Security Service,
(b)the Chief of the Secret Intelligence Service, and
(c)the Director of the Government Communications Headquarters.’.
No. 42, in clause 32, page 17, line 11, after ‘State’, insert ‘and the Treasury jointly’.
No. 43, in clause 32, page 17, line 16, leave out paragraph (b).
No. 44, in clause 32, page 17, line 22, leave out ‘may’ and insert
‘and the Treasury may jointly’.
No. 45, in clause 32, page 17, line 23, leave out subsection (4).
No. 46, in clause 32, page 17, line 34, at end insert—
‘(5A)An order under subsection (3) may not specify—
(a)a power of Her Majesty’s Revenue and Customs if or in so far as it relates to a matter to which section 7 of the Commissioners for Revenue and Customs Act 2005 (c. 11) (former Inland Revenue matters) applies, or
(b)a matter to which that section applies.’.—[Mr. McNulty.]
I shall be very brief. The amendment is a tidying amendment in the truest sense of the word. It simply moves clause 32 so that it follows clause 33, as clause 33 will be applicable only to clause 31 as a consequence of Government amendments Nos. 48 and 49. If that is clear, I ask the Committee to accept amendment No. 34.