I have to inform the Committee that unfortunately Shami Chakrabarti is unwell and is unable to be with us for our second evidence session this afternoon. The Public Bill Office has done a brilliant job and managed to get two people in her place.
May I remind Members and witnesses that this afternoon’s oral evidence sessions must stay within the scope of the UK Borders Bill, however tempting it may be to stray into other areas, and please could everyone try to keep questions and answers concise and in order?
I also remind Members that normal rules of order apply, even when we are sitting in this unusual formation, so Members should not under any circumstances use mobile phones, laptops or PDAs at any point whatsoever during our proceedings.
Also, the Hansard writers have found it difficultto report our proceedings because some private conversations have been audible. Apparently they interfere with the microphones, and that hampers the Official Report.
Our first evidence session must finish at 3 o’clock.I would have to interrupt proceedings if they have not been concluded by then, and the same thing will happen at the end of the second evidence session, which must finish by 5 o’clock.
Would our witnesses kindly introduces themselves, without making an opening statement?
1 Damian Green (Ashford):
I would like to start with the part of the Bill concerned with biometric registration, and in particular address Professor Anderson, with his expertise in the area. We heard from witnesses this morning and in written submissions that there is a widespread misapprehension that biometrics are 100 per cent. foolproof and a perfect solution to the problems of identity management. I would like your comments on how fallible they are.
Professor Ross Anderson: The word “biometrics” covers several different things. The Bill refers principally to three biometrics, which will be facilitated by it. The first is a facial image that is a digital representation of the kind of photograph that you have in your passport already. It is not very accurate. Randomised controlled trials show that you can easily pass off someone else’s photo if you are allowed to choose from, let us say, a couple of dozen photographs of people of the same sex and race. You can get one that is a good enough match that it will fool almost anybody on inspection.
Secondly, there are fingerprints, which are significantly better but definitely not infallible. There have been cases of misidentification recently, most notoriously the McKie case in Scotland. We do not know for sure precisely what the error rates of fingerprint scanners are because to measure them one must consider the equipment, algorithm and actual data that are used. If you take at face value the claim of the Metropolitan police that the error rate is one in a billion, fingerprints are fine for matching a crime scene print against the dabs of 100 known local active burglars, but they are less satisfactory if you are trying to match thousands of crime scene prints per year against a library of millions of prints held on file. That is how advances in information technology have led to more and more misidentifications.
Fingerprint technology is almost certainly not good enough if you are matching one population against another, say 90 million people a year arriving at Heathrow versus 60 million people in the UK. You will get absolutely swamped by false matches.
The third biometric that we are talking about here is iris codes. A declaration of interest, I suppose, is that these were invented by my Cambridge colleague, John Daugman. These give very much better resolution than fingerprints. The error rate is very much lower and as far as we are aware they are the only biometric whichis powerful enough to be able to match a population against itself. If you are matching tens of millions against tens of millions you have to go for iris codes.
I should like to ask you about your last comment, particularly as it applies to children. What are the particular problems in measuring the biometrics of children? What can be used that is accurate and reliable?
Professor Ross Anderson: I do not have deep expertise in this specific field, but I understand from colleagues that iris codes are stable throughout life, as they are formed in the womb in the second to third month of pregnancy. Fingerprints are more difficult, because children may not have as prominent fingerprints as adults. Even though they may not change, they may have a higher error rate in measurement. Fingerprint error rates also increase where people are manual workers, where they are elderly and their fingerprints have been worn down, or where fingers have been injured. I have a cut on one of my fingers with which I managed to crash the fingerprint sensors initially put in at the FBI in Washington. They have fixed that bug, but it is still the case with most biometrics that some people are not measured as well as the general population. That can affect children.
I understood you to say that the error rate in terms of fingerprints was one in a billion. You went on to say that in terms of matching hundreds of thousands per population, against another population, the frequency of misidentification is much higher. I am not entirely certain how those two things marry up. An error rate of one in a billion, given that we have a world population of 6 billion, does not seem a bad rate of accuracy to me. Could you just clarify that?
Professor Ross Anderson: I was assuming that we could use, for the sake of argument, the Metropolitan police’s claim that the probability of a misidentification when you match on 16 points is 1 in a billion. I do not believe that it is that good. It is perhaps in the tens of millions, but that is something on which research is ongoing. The problem that you get in translating a figure like this to population against population matches is that if you match 50 million people in England against 100 million people arriving at Heathrow in four or five years’ time, the number of identifications that you are doing, assuming thatyou are scanning one finger of each person, will be50 million x 100 million. So it will be 5 x 1015, if my mental arithmetic serves, which is an awful lot more than the one in a billion error rate that even the Met would have us believe. If the error rate, given the equipment that we are going to use, is actually closer to one in 10 million, the number of false matches that you will have will simply swamp the system. That is why, for population-screening scale biometrics, iris codes are much better than fingerprints.
Professor Ross Anderson: If you were matching fingerprints and irises, that should be a very strong means indeed, but then the question arises of why you bother with the fingerprints since the irises would give you most of the significance in that. Irises are more than five times better than fingerprints. They are many thousands of times better than fingerprints.
Profession Anderson, may I ask you a general question and then a specific one? Liberty argues in its submission to the Committee that
“biometric registration is effectively the first stage of roll out of the National Identity Card Scheme.”
You are an expert in these matters; what is your view on that in general?
On a specific point, in the regulatory impact assessment the Government have described the introduction of biometric identity documents as an opportunity to:
“De-risk ID Cards by trialling similar technology and processes”.
What is your view on that explanation?
Professor Ross Anderson: I suppose that from the point of view of the management of the programme it makes sense. A number of things proposed in the ID card scheme are open to technical criticism as well as the political arguments with which I am sure you are all familiar. It might make operational sense to test out the equipment and procedures on a sub-group of the population, most of whom are extremely unlikely to raise principled objections because they are not in a position realistically to refuse to be scanned. As far as the ID card scheme is concerned, I registered my scepticism when I gave evidence before the Home Affairs Committee in 2004 on the Identity Cards Act 2006. I took the view that, among other things, you are not going to get an awful lot for a large amount of money, that other problems should be tackled as a matter of priority and that many of the arguments that were advanced in favour of ID cards, namely the rhetoric around identity theft, missed many important points of policy and engineering.
Professor Ross Anderson: I think the threat of that is fairly clear. It has been clear in ministerial utterances, in the explanatory notes to the Bill and in the excellent document produced by the House of Commons Library. It is straightforward that this is a stepping-stone towards an ID card scheme that Ministers envisage will at some future time be compulsory and used by many other services: banks, insurers, shops and so on to identify their customers. That brings us tothe objections that I raised before the Home Affairs Committee, and you can refer to the Committee’s record if you want the details.
Guy Herbert: On the same point, it is explicitly part of the plan. If you look at the identity management action plan published by the Home Office at the end of the last parliamentary Session, you will see that the scheme is intended to use the biometric database that is being developed for immigration purposes as part of the national identity register. It is therefore explicitly a stepping-stone in a technological respect. It is also a stepping-stone in a legal respect. The House was promised during the passage of the Identity Cards Bill that there would be no compulsory element to the scheme and that that would be left to future legislation. Many Members and many Members of the public might have thought that that would be a new ID cards Bill to make them compulsory. The legislation shows that it can be salami-sliced. A section of the population is in effect being compelled on to the ID cards register, on the same database, through this legislation.
Phil Booth: During the passage of the Bill there was an exchange between the then Home Secretary and the Joint Committee on Human Rights that pointed out that to salami-slice the population in such a waywas potentially discriminatory. NO2ID is not aware that those concerns were sufficiently answered oranswered to the satisfaction of the Joint Committee. Furthermore, we would say that there is an administrative thing going on here in that there is an ongoing process by which the costs of the development of the ID card scheme are reported to Parliament on a six-monthly basis. We would be interested to see whether certain costs are now being hived off into other Departments in that way. If the biometric portion of the register is being built for that purpose, will it be tagged as an immigration cost rather than as an identity scheme cost?
You described to us, Professor Anderson, how some of the biometrics could singly, if not in combination, significantly increase confidence in a transaction between an individual and the state at any point. Can you tell me how you think a false negative would affect an individual in any such transaction? Do you think it would be any worse than a reversion to the situation before the use of biometrics—that is, if they had to produce the paper documents that they currently have to produce?
Professor Ross Anderson: Let us suppose thatone of my students—most of our graduate studentsare foreigners these days—tracked out to BurySt. Edmunds to have his fingerprints scanned for his ID card, which is in effect what will happen to my students if this becomes law, and that while he was there, there was a false positive that mistakenly identified him as someone who had acquired a criminal record in the UK or some other country in the past 10 years. The likely outcome for such a person would be quite a lot of hassle, to put it mildly. The Bill contains powers whereby the immigration officer could detain my student for up to three hours.
Students who have been interrogated by immigration officers in the past have commented on their brusqueness, lack of civility and unwillingness to give names, and a general culture that is rather different from that which we expect nowadays from the police. My student might expect to be given the once-over and perhaps held overnight in the cells while further inquiries are made. In the fullness of time, once you start getting a large number of false negatives through the system, the system will learn not to react so aggressively. But in the beginning, at least, I can foresee that a number of individuals might have quite a hard time of it.
But would you accept that there are big differences between the circumstances in which there can be false positives and false negatives? They exist in different transactional contexts.
Professor Ross Anderson: You can of course tweak a system so that you can adjust the number of false positives versus false negatives. That opens the question of who will do the tweaking and what the institutional incentives will be. Another raft of issues comes along when you start thinking about using a national identity document in financial transactions. Banks tend to have a very different idea of what the trade-off between false positives and false negatives should be.
One reason why the banks have not introduced biometrics for, let us say, card payments is that they are very reluctant to insult their customers. They reckon that a fraud rate of 1 in 100 is acceptable provided that the insult rate is no more than 1 in 100,000. I rather think that police, immigration, the Home Office and so on might take a completely different view of false negatives and false positives. I do not see any evidence that such issues are being thought about.
But that is the subject of the design of the overall system—not the technology, but the operational system in which it sits. You are making assumptions about what form that will take.
Professor Ross Anderson: What I see so far in Government thinking is a move away from iris codes towards fingerprints. I can understand the police lobbying in favour of compatibility with their legacy systems, but it will make questions about false negative versus false positive somewhat more acute than would be the case if the Government had stuck with their original plan to do all this by means of iris codes.
I want to move on to security issues, but just to pick up on that, would it be more difficult to institute a full iris recognition system from now? Would it take longer and would it be more expensive?
Professor Ross Anderson: I tend to the view that an iris recognition system could be implemented in a more lightweight way, almost out of the box. The reason for that is that they are working the system in the United Arab Emirates, where their principal concern is to stop people who have been deported, principally Pakistani prostitutes, from re-entering the country under passports in different names, which they get by bribing officials. Over the past few years, the United Arab Emirates has scanned millions of people who have arrived in the country and it has caught thousands of people trying to re-enter the country illegally. A system like that can be stand-alone; you do not have to spend years and billions of pounds integrating it with existing technology. The possibility exists of carrying out that kind of entry screening independently of any future fingerprint strategy.
More generally, I would like to ask each of you about the issues of keeping the biometric information secure, however it is collected. What are the problems with that? Is the information likely to drift across different Departments, or out into the private sector?
Professor Ross Anderson: There is a fundamental security engineering problem with biometrics as opposed to, say, the cryptographic keys in your chip and PIN card. Once your biometrics become compromised, you cannot revoke them; it is not practical to do eye or finger transplants. Therefore, once you start using biometrics on a very wide scale, for all sorts of everyday transactions, the mafia—for want of a better word—will also have your biometrics. You do not know which shops are owned by the mafia, but if you end up having to put your fingerprint on the glass every time that you buy a can of Coke, sooner or later the mafia will have the biometrics of millions of people.
What can you do about that problem technically?We have conducted a line of research at Cambridge whereby, instead of storing a biometric on a database, you use it to generate a cryptographic key, which the user can then carry around in a smartcard. So the system, instead of taking a Big Brother approach, becomes an enabling technology, whereby the citizen or customer can use their own biometric as a key to unlock their account with a particular institution.
Curiously enough, the student who carried out that work is currently sitting in Beijing for three months, waiting for his visa to be redone. However, yes, it is technically possible to do very much better than is being proposed in the Bill.
Guy Herbert: From the point of view of the security of the information, the system is being built broken here; you can see that in the information-sharing provisions that seem to creep into every Bill these days. In clause 8(2), there is provision for the information that is collected for the purposes of the Bill to be used for any designated purpose that the Secretary of State chooses to establish, which is a very broad provision. All these data-sharing provisions have precisely the same problem; the more purposes that you use information for, the more it is spread around. The simple way to keep information secure is to have a single system that is not used for other purposes and is locked to that purpose.
Would that idea be directly useful to the consideration of the Bill? Are you saying that the Bill should specify uses, rather than have these catch-all powers?
Guy Herbert: Always, in principle, we would say that the use that information is put to should be very carefully specified, preferably in primary legislation, to avoid feature creep. However, it is more than that; you also need technical and institutional solutions that prevent the broad spread of information.
I think that we know your views on ID cards, generally—I would suggest that the clue is in the name of your organisation. However, I wanted to put that to one side and specifically ask you both—whichever of you would like to answer—whether you think that the proposals in the Bill will be useful in terms of our immigration policy specifically.
Guy Herbert: NO2ID does not have a view on immigration policy. We could not have a view on immigration policy, because we are an umbrella group that contains people who would like open borders, people who would like all foreigners locked out for ever, and people whose views are everywhere in between. Equally, we do not have any views on the technical powers for immigration officers that will be introduced in the Bill. What we are concerned about is the general tenor of the Bill, particularly the onerous registration procedures, which are connected, as we have illustrated, with a general desire for a population register. Having a register of migrants, a register of visitors, is intrinsically harmful to the public and to the welfare of Britain, whether or not it is extended to a general population register.
We believe that a register will put people off coming here, and that means not just Professor Anderson’s students, but potentially valuable migrant workers, and foreign residents who bring a lot to this country and spend a lot of money here. The policy is incoherent. The Government appear to say, “We welcome immigration and the expansion of our borders and trade with the outside world, but at the same time we will focus resources on inconveniencing the people whom we want here.” The measures will not affect the clandestine immigrant.
I am slightly confused, because you said that you had no views on immigration policy, but you have just spent the past few minutes explaining that the Bill could deter immigration and that that is bad. Could you clarify what your organisation thinks?
So, the view of NO2ID is that the legislation is bad because it will discourage the people whom we want in this country from coming?
Professor Ross Anderson: The academic view is that the move to require people to obtain biometric visas before they enter the UK, which is part of the e-Borders programme, could cause us and the computer industry, with which I have significant links, considerable problems. The Committee might find it useful to consider, first, the Emirates’ approach, which is lightweight and aimed at a specific purpose, namely keeping out deported bad people for public healthand order reasons; and secondly, the US-VISIT programme, which is a medium-weight programme whereby one is photographed and fingerprinted when one visits the USA, although most people do not have to be fingerprinted prior to boarding an aeroplane. Thirdly, the Bill is developing the UK system, which is more heavyweight than the US system.
My concern as an academic is that the US is already becoming a significantly less attractive place to hold scientific meetings, because of the difficulties and delays that non-Organisation for Economic Co-operation and Development scientists have travelling there. If we inflict that on scientists from the 100-odd visa countries in the UK, we will also be shooting ourselves in the foot. There are similar concerns in the IT industry, which relies very heavily on migrant programmers, and I expect that there are similar concerns in the City, too, although it is grown up and it can fight its own battles.
Guy Herbert: Our view is that you can institute any form of immigration control you like, but that you have to accept the consequences. Making it a grand and expensive system that will weigh heavily on legal immigrants means that you will discourage the very people whom you say you want here. At the same time, you are building a surveillance system that you do not need to build.
Are there circumstances in which you could have a biometric ID card, for immigration purposes only, which would be useful to a country in conducting its immigration policy?
May I return to Mr. Herbert and Mr. Booth and deal with issues touched on in previous answers? As you know, clause 5 works through secondary legislation; it is quite loose in that respect as the provisions are not to be found in the Bill. In my opinion, the Minister has not given a satisfactory answer on that, although it is a separate issue. For instance, subsection (2)(k) would
“in specified circumstances, where a question arises about a person’s status in relation to nationality or immigration”.
Do you feel that there is scope for difficulties inhow the Bill is interpreted once we have biometric immigration data?
Guy Herbert: There is certainly scope for arbitrary enforcement and arbitrary regulation. I think in principle that that is not a good thing. However, the whole of the registration regulations are very broadly drafted, and in some respects they parallel preciselythe regulations on the Identity Cards Act 2006. Presumably they are meant to slot together. That is perfectly understandable in the context.
With your indulgence, Mr. Amess, I have a general question for Mr. Booth and Mr. Herbert. Do you feel that in the publication of the regulations you will be given sufficient opportunity to comment on the specific details?
Guy Herbert: That is entirely in the hands of the Secretary of State when he issues the regulations. If he gives Parliament and the country three months to consider them, fine. If they are turned out on a wet Wednesday at the end of December and not considered by Parliament until the first day after the Christmas holidays, then obviously not. It is entirely in the gift of the regulating power.
I have a question for you all, but particularly for Professor Anderson. As you understand it, would it be fair to say that the disbenefits of a biometric ID system are theoretical assumptions, or is there an evidential base from the US or other European countries making wide use of biometric ID in a variety of ways that underpins such disbenefits?
Professor Ross Anderson: Again, it comes down to the breadth of the term “biometric ID”. If you are talking about a biometric ID as simply being an electronic representation of what you already have on a passport, that is not a huge change. If, on the other hand, you start talking about people relying on fingerprints to authenticate banking transactions, that brings you into an entirely different sphere. Hundreds and hundreds of questions arise, as already mentioned, about how the mafia get hold of people’s fingerprints, about the design of readers, about issues of liability—will a bank be able to win a dispute with a customer unfairly by saying, “Your Government-issue photo ID was used; therefore you are liable”? Hundreds of questions flow from that. It depends on how those things are implemented and whether they are taking up by commerce. I am rather afraid that they will tend to be taken up by those branches of commerce that want to engage in some kind of liability or risk dumping.
I think that most people would share those risks. Can I infer from your answer that there is not an evidential base and that they are assumptions?
Professor Ross Anderson: We have only seen the deployment of biometric ID on a large scale in two or three schemes so far. The US-VISIT programmes perhaps gives us the biggest evidence base. The deployment of biometrics in the United Arab Emirates is good for the science, because it gives us a large database to look at. As far as US-VISIT is concerned, the recent report from the US General Accounting Office indicates that an awful lot of money has been spent and not an awful lot of benefit has been received. The Committee and Ministers should consider that very carefully, because the UK gets an awful lot more visitors than America—tens of millions rather than millions, because of our role as a hub between America, Europe, the Commonwealth and so on—and because we are proposing a much more heavyweight system. Insofar as there is evidence, I direct your attention to the GAO report on the US-VISIT scheme.
Guy Herbert: Professor Anderson has stolen my example but he has done it much better than I would have done. That report does merit careful reading. It is worth making the point again that when you talk about biometric schemes of identification, that is as wide a term as “books”. It could mean anything. It is a biometric scheme of identification when I have put my thumbprint on my laptop and my laptop opens up, but it is only comparing one thumbprint with one thumbprint model. It is not comparing millions with millions. Equally, the purpose and the function of a biometric document varies very widely. If you are worrying about the security of those things it is not only the problems of false matches and false mismatches that you have to worry about, but the question of fraud. The Government have sought to address that in all their legislation relating to biometrics. It has always been presented as a way of dealing with fraud, particularly in the immigration context. We think of immigration fraud as someone thinking they are entitled to enter Britain when they are not.
All these schemes have slightly different opennesses to fraud. A digitally signed document with biometrics embedded on the card is one thing and maybe less susceptible to fraud—certainly less susceptible to man-in-the-middle attacks than a large database. It is infinitely less susceptible than a large database to central attack because there is no centre to attack. You pays your money and you takes your choice. You can pay an awful lot of money and get a very bad choice, as the Americans have done.
Phil Booth: I do not have a great deal to add to my colleague’s statement but some friends at Privacy International have pointed us to some sources which we will be very happy to submit in paper form to the Committee, including testimony given to the US Chamber of Commerce in 2004 that considered that the US-VISIT scheme would impede legitimate travel and trade and also a survey and analysis by the Santangelo Group on behalf of the industry associations and trade councils within the US that also predicted significant revenue losses and indirect costs.
The scheme has been running for some years and we will be happy to submit a series of articles that has been tracking the progress of the scheme that includes such statements as up to $30 billion having been lost to the US in some form since 2002. It is fair to say thatin this case each individual implementation of a scheme—the technology, the legislation and everything else—will have a different effect in each country.
For the purposes of the intentions of the Bill, do you understand why biometric identification, notwithstanding the issues within that term, is included in the Bill?
I was interested in the comments, Professor, that you made about the operation of the scheme in the US and also the Emirates. I wonder whether you could elaborate a little on how the Emirates scheme is operated and what practical difficulties you envisage in operating a UK biometric visa document rather than just using biometrics to secure our borders.
Professor Ross Anderson: How the UAE scheme works is that when you fly into Dubai you look into the camera and get your iris scanned. If you are deported from Dubai you get put on the blacklist and if you try again to enter Dubai they pick you up at the border and turn you away. It really is that simple and straightforward. The US-VISIT scheme, as anybody who has been to the US in the last four years will know, involves a fingerprint scan, then a photograph which can be compared with your passport and with photographs that you produce in future, so that if you try to get in using a false passport there is some possibility that you will be detected.
A small number of people have been caught thanks to the US-VISIT scheme—a handful of people with outstanding warrants for their arrest. Overall, however, our assessment of the scheme is that it has not provided any major benefits. It has brought what one might call security theatre, rather than actual security. It reassures people that the Government are doing something. We all know, of course, that if you are worried about terrorism, things such as ID cards and fingerprints are not the way forward because terrorist organisations have a ready supply of people not known to the authorities and prepared to volunteer for missions. None the less, it reassures people.
As always, the question is about cost—the cost imposed on those unwilling to go to the USA, as well as that which would fall on universities, IT industries, the City and so on, if it became more difficult for, say, a Chinese scientist to come to a conference in Cambridge than to one in Cambridge, Massachusetts. Inevitably, that will make us a little less competitive. We have to fight with places such as the Massachusetts Instituteof Technology and Stanford for the best research students. Everything that gets in the way of that is bad news for us.
Professor Anderson, I have two questions to help me review the evidence that you have given this afternoon. First, the United States and most EU states have either moved, or are moving towards, biometric visas and ID cards. In your view, on balance, have they got that wrong on the points that you have raised?
Professor Ross Anderson: I refer you to the evidence that I gave to the Home Affairs Committee three years ago: if Britain decided to have an ID card scheme, the least awful scheme, and the scheme that we should be imitating, is the one in operation in Germany. Under that scheme, a central database is avoided and population registers are kept locally; details such as photographs are sent to the federal printing works in Berlin from the local registration office; it is against the law for an ID number to be used for any purposes so that if, for example, your bank were to record your ID card number in its computer database, it would be committing an offence; and ID card numbers are not person, but document numbers and change every time the document is reissued. That avoids the problems seen, for example, in the USA, where the social security number is used as a universal identifier, which leads to rampant problems for individuals. Although I am sceptical about the value of ID cards in general, if we must have them there are much better ways of going about it than those proposed in the UK Borders Bill and, more generically, in the Identity Cards Act 2006.
I think that you have answered my second question, but I shall ask it anyway, just to be absolutely clear. I have not read your evidence to the Home Affairs Committee, but I shall make a point of doing so. To be absolutely clear, is your scepticism of those aspects in this Bill based on administrative or engineering problems, or on the principle of ID cards themselves?
Professor Ross Anderson: It is based on both. I suppose that I first became sceptical about ID cards as a student working in Germany in the 1970s when there was a terrorist scare involving Baader-Meinhof. I was for ever being pulled over by the police—two or three times a day—because I had long hair. “Ausweis bitte!” they would say. It seemed to me that the ability to ask someone for an ID card had deprived the German policemen of the power of observation and judgment. They had a formal procedure that they could go through, whereas a British policeman would haveto ask a suspect some questions and roll out his suspicions.
From the engineering point of view, a quarter of a century or so of experience in engineering secure systems has told me that it is a bad idea to try to put all your eggs in one basket by trying to use the same token for too many systems. I am sure that we all have bundles of cards—library cards, store cards, swimming pool cards, all sorts of things—simply because it is natural engineering practice and good business practice for businesses to maintain their own customer lists and to have control of them.
When I have been involved in engineering projects in which people have tried to aggregate identity—by putting a prepayment electricity meter functionalityon to a banking smartcard, for example—they have tended to run into trouble, because the applications fight with each other, the complexity of the thing grows out of control and you can find the business models at war with each other. What happens, for example, if the bank wants to introduce a new deposit account but the space that is needed for that is coveted by the electricity company for a new night-time discount scheme? The complexity becomes unmanageable. It is a good idea to keep your identity and your authorisation systems separate, simple and robust where at all possible.
May I ask a supplementary question, which arose from the anecdote of your experience in Germany? Is it not the case that the cost of issuing biometric immigration documents and identity cards will be received from fees? Although it may be preferable to have police officers who would make a judgment, there is not a spare pot of money available. It is not an either/or situation in which you could spend the money either on ID cards or on more police officers. The reality is that the ID cards proposed in the Bill will be paid for through the fees of the people who use them.
Professor Ross Anderson: There are already significant complaints from our foreign students about the huge escalation in visa fees in recent years. Where the students have to pay them, that becomes a disincentive for them to come and study with us. Where we have to pay, because we are employing the student as a research associate, for example, that cost comes out of the research grants that I administer. When they run out, I have to go out to do some selling and get some more money, so it becomes a direct business cost to me.
I want to try to be fair to the Home Office—it is St. David’s day and I am Welsh and feeling full of the joys of spring. You made the point powerfully that over-centralisation is one of the many bad things about the system. The Home Secretary says that there will not be a single database, but that the information in general will be shared over three databases. Does that make any difference, for good or ill, to the arguments about the general efficacy of the systems?
Professor Ross Anderson: I suppose it depends on how it is done. If we ended up with large numbers of Government databases that had information about me that could be used to impersonate me and, for example, a dozen, or even three, Government databases had my fingerprints, which could be used downstairs in the bank to withdraw my money, I would be rather concerned about that.
Guy Herbert: It may introduce some security concerns, in that information has to be exchangedand there are more points of access. It introduces considerable development concerns, in that you have to bash together multiple systems rather than one and you are not necessarily starting from scratch. As far as the general principle is concerned, it does not make any difference, but there are a lot more practical concerns.
Professor Ross Anderson: I might be able to offer a slightly deeper answer than that. One of the things that we are now researching is the percentage of large software projects that fail. We know that this is due to socio-economic factors because 30 per cent. of large projects fail now and 30 per cent. of large projects failed in 1970. That tells us that it is not because of the technology—we build much bigger and better disasters nowadays—but has to do with things like risk aversion.
A question then arises: why is it that the public sector is more likely to suffer such flaws? Recently, people have been looking at laying what we know of the economics of dependability alongside what we know of the economics of organisations, public choice theory and so on. We find that there is a significant mismatch. The things that you do to be a good project manager and those that you do to be a successful Minister are quite different. There are many examples but one should suffice: a project manager is for ever trying to close down all options, to get the specification as tight as possible, right at the beginning and then not let things change for a few years as the system is developed. A Minister, on the other hand, if he is wise, is going to delay hard decisions and keep options open for as long as possible because Ministers are fundamentally in the business of resolving societal conflicts rather than doing stuff.
We are beginning to understand that it is because of a mismatch in culture between the operation of the Government and of business, that you can always expect that with certain types of project there willbe failures. Projects that have constantly shifting specifications are the most likely to fail. That should be an alarm bell for the UK Borders Bill, the ID card project and the e-Borders project because the stated goals are shifting too much and too often for us to be confident that robust systems will be built in time and on budget.
Phil Booth: It should be noted, and probably has been noted, that throughout the passage of the Identity Cards Bill, the supposition of Parliament, the public and virtually everybody was that there would be a single, large database. It was only on the last day of Parliament before Christmas that the strategic action plan from the Home Office presented the novel option of spreading people’s personal data across three existing systems. Clearly, shifts occurring that late in the process feed into what my colleagues have said.
Am I right in understanding, then, that the project proposed in the Bill will be at the bottom end of the likelihood of a successful project, given all the constraints that you suggest?
Professor Ross Anderson: I think that I would be rather concerned about it. The most worrying projects in Government at the moment are the NHS database, the ID card project and perhaps the children’s databases—in that order. In so far as this is part of the larger ID card project, I am seriously worried about it.
Professor Anderson, I was interested in your comments to Mr. Campbell about the anecdotal evidence regarding being a student in Germany and the idea that we are not giving the police the opportunity to observe and to make a judgment. Is it not the case that a procedure processing systems in conjunction with biometric passport information actually reduces the risk of corruption because there is a process that the police officer, or immigration officer in this case, has to go through? That actually reduces the risk that certain racial groups will be targeted simply because they are a member of that race. Conversely, is it not the case that the person being questioned, because of the mass migrant movement, can provide positive reassurance that they have a legitimate right to be here? In both cases, it protects the immigration officer and the person being questioned.
Professor Ross Anderson: Far more procedure can sometimes be helpful. I was not enormously impressed with the formal procedures that I observed 30 years ago in Germany and I hope that any developed for use here will be better. On the discrimination side, my wife is of Indian origin, but born in Cape Town, so I have got many in-laws who are Hindus, Sikhs and Muslims. Especially among young men from those communities there is concern that they could end up in a stop-and-search situation. A particular problem with the UK Borders Bill is that once all foreigners carry ID cards there will be a temptation for police officers and others to stop people and say, “Are you foreign?” If somebody says, “Well, I was born in Southall,” they might be tempted to say, “Prove it.” Is this the thinof the wedge? Will this run the risk of disturbing community relationships? We do not know. We do not know the context, or what the regulations are goingto be.
You said that a significant proportion of your postgraduate students are foreign. How important are they tothe economics of Cambridge university, or your department, as far as you can tell us?
What is your opinion, then, of the extra burden that will be placed on them, in fees for the identity cards they will be required to have in addition to the visa arrangements they already go through, as well as by the obligation to report? What is that likely to do to your students and the reputation of the United Kingdom as a place for higher education?
Professor Ross Anderson: It will diminish our competitive position. I am not going to be a Cassandra and say that it will be the last straw that breaks the camel’s back, but every week at this time of year we find that we are losing able students to competitors. The prospective student I lost this week is going to Stanford instead of Cambridge; it happens all the time and in each individual’s decision there are a number of factors. One of the things that seriously concerns us is that in some places, particularly in the far east, the UK is beginning to get the reputation of being non-competitive. For example, Chinese students are starting to say amongst themselves, “Service in the UK isn’t very good. You can often get a better deal by going to the USA.” There are also worries about the perception in India, because students from China and India are a significant part of our intake; foreigners are three-quarters of our graduate student body. Every single little bit of extra weight that is put on top of the beast makes it go slower and less likely to win the race.
There are a few areas I want to cover. On the point about overseas students, I think you said earlier in evidence that fees for students are higher in the United States, which is certainly my perception. You gave as an example a student who was deterred from studying at Cambridge and decided to go to Stanford instead. Surely that is nothing to do with the situation we are discussing at the moment. It is nothing to do with fees; it is a decision about what sort of course students want to take.
In respect of the provisions in the Bill, I am trying to nail down what evidence you have that they would be a significant deterrent as opposed to all the other factors that might make someone choose the United States rather than the UK?
Professor Ross Anderson: We already have problems with the tightened-up visa regime, as it has changed over the last year or two. For example, the student who did the biometric work with me is currently sitting in Beijing and has an assurance that he should get his visa by March. In effect, he will have spent his writing-up period in Beijing and will come back to us for his post-doc. That is a more and more common occurrence. The problem is that as more and more students get negative experiences, of whatever kind, whether it is being questioned for an hour or so by unfriendly immigration officials, having to wait three months for a visa, or having to pay hundreds of pounds more for a visa than used to be the case, it feeds into the general perception—what students are talking about in the common rooms in universities in China and India about the best places to do a PhD. That is a matter of competitive concern to us.
Do you know what the figures are for the increase in the number of overseas students who are choosing to come and study in the UK, say over the last five or 10 years? I wonder whether there has been a falling off.
Guy Herbert: Indeed, but all these things are a matter of decisions at the margin. There is not one thing that necessarily makes you choose not to come here, but if we increase the cost—in a very general sense the cost of somebody’s visiting the UK for whatever reason—there is a possibility that you choose something else. The US went through the same thing when they introduced much tougher visa restrictions. Our submission has an item from Bill Gates speaking at Davos in 2005, saying that the United States was suffering very badly from Asian students ceasing to come to take computer courses, precisely because they had started to be put off by the visa restrictions.
Professor Ross Anderson: In the case of Cambridge, for example, our vice-chancellor spends a significant part of each year travelling to the far east. We recently made one of our five pro-vice-chancellors responsible for overseas activities, and her job is now basically to go to places such as India and China to whip up business. That is how seriously it is seen in Cambridge. I am a member of the council of the university, the university’s governing body, so I get to see and hear about such concerns at that level.
Moving on, you raised the point about the police potentially harassing peopleand demanding identification and so on. In my constituency, there must be a significant number of people who may or may not be legally entitled to be in this country, but might be open to suspicion. Would it not be a lot easier, if somebody wanted to check their identity, for them just to be able to produce an ID card and say, “Yes, this is it, I am entitled to be here”—a two-second question and answer? That is it, it is over, rather than relying on bits of paper from the Home Office and all the other forms of identification one might have to produce at the moment. Would it not make life easier for those people who need to prove their status?
Professor Ross Anderson: I seem to recall that the Home Affairs Committee recommended that the way forward would be more vigorously conducted and resourced enforcement of existing regulations against illegal working. I believe that the recommendations have been taken up. I understand that the Home Office is introducing a helpline later this year, which will enable employers to phone up and check whether someone is legit. That is being fixed.
That already exists, in that there is an employers’ hot line, which they can phone up and check, but it is obviously more complicated for an employer, say, to make a phone call than it is for somebody to get an ID card out of their wallet. You are talking about another scenario. I was talking more about the police rather than employers carrying out checks. If the police wanted to check someone’s immigration status, at the moment we are talking about—as with people coming to my constituency surgery—a whole bundle full of paperwork, including letters from the IND, maybe travel documents and various other things they have sent. It can be very difficult wading through that to try to work things out, because, obviously, letters have expiry dates and limited shelf lives, only being effective the date that they are issued. I do not understand why you are saying that this would be so much more onerous.
Professor Ross Anderson: I do not understand why it is a particular concern at all. Certainly, when my wife was not yet a British citizen, she had a stamp on her passport saying that she had indefinite leave to remain or whatever it was—I do not remember the details—and that was sufficient. When she went and got jobs, she would wave her passport, quote her national insurance number and the job would be done. I do not see why one has to add on top of that system, which worked fine, yet another card. No doubt, even once people have these cards, there will still be letters from IND about status and one thing and another. I cannot see how adding another card to the existing travel documents solves the problems.
You say that the police would be more likely to stop people and ask them to produce this identification. Why would they be more likely to do that than they are to question people’s immigration status now?
Why would it, though? Certainly in my area, the police are very wary of community cohesion issues. They want not to stir up conflict but to build good relations, so they are quite reticent about making inquiries of people. The last thing that they would want to do would be to walk through some of the areas in my constituency and stop everybody who looks Somali in origin, demanding to know what they are doing on the streets of Bristol. Why will they be more like to do that when people have cards?
But at the moment, if the police suspect that somebody who is walking around is in this country illegally, they can stop them and ask questions or require to see documents. They do not do that as a matter of course, partly because of resources and partly because of the danger that you mentioned that they could be harassing people who are here perfectly legitimately. I do not see why the fact that the cards would be in existence would make any difference.
Guy Herbert: I think the discussion is getting slightly hung up on that point. What happens when a new system such as this is introduced is that the cost of inspecting somebody’s status is shifted because it is easier and the balance of risk is shifted between people whose status is checked. People run the risk that not having their cards with them, or having false positives or false negatives on their cards, are more serious matters than not having the correct immigration documents on them happens to be now. That is simply because it is less hassle to check under a new system. That is not a strong point either way—under the new system it is less hassle to check but when one does check one is more likely to believe that the result is certain. That impression of certainty in the new system is a risk either way. It is a risk if one gets false negatives as well as if one gets false positives.
In the evidence that the Minister gave previously, which I have been re-reading, he said,
“What we have to construct is the right roll-out plan for biometric immigration documents. We are starting with none of those 3.4 million people with biometric immigration documents; we want to get to a situation where they all have them.”——[Official Report, UK Borders Public Bill Committee, 27 February 2007; c. 23.]
He also said,
“There is a minor technical question, which is that it is important to ensure that the specification of the technology that we use is common across the EU.”——[Official Report, UK Borders Public Bill Committee, 27 February 2007; c. 22.]
Earlier, Mr. Rowen and Mr. Campbell spoke about the revenue costs, and Mr. Campbell made the point that the scheme might be self-financing. Can I ask Professor Anderson, Mr. Booth and Mr. Herbert whether there is any reputable academic data on the likely capital cost of setting up the infrastructure, bearing in mind that it is going to be spread across a number of Government agencies. If not, what is your estimate of the likely cost?
Professor Ross Anderson: I suppose I should refer you to the study that the London School of Economics did in the context of the Identity Cards Bill. I contributed some bits and pieces to one of the chapters, but over all, as I recall, the document paints a picture of possible costs of the order of £20 billion for a fully implemented ID card scheme. What proportion of that would fall on a borders-only scheme in the event that the UK Borders Bill was implemented and, let us say as the result of a change of Government, the ID Cards Bill was not, I would not like to hazard a guess. I do not know how much of that you could carve out.
Guy Herbert: It wholly depends on what you do. There are cheaper ways of doing it and more expensive ways, and it is not a minor technical question whether it is interoperable with other systems. At which stage you decide to make it interoperable will affect how much it costs, because it will affect what you do. So it is a matter of, “How long is a piece of string?” I am afraid. It could be very, very, very expensive, as the US-VISIT system has been.
Coming back to Professor Anderson, we were talking about foreign students. Just to help the Committee judge the importance of the evidence that you gave, could you tell me how much the fees are for a postgraduate student at Cambridge and how much you imagine the charge might be for a biometric ID card?
Professor Ross Anderson: The fees for a foreign PhD student are of the order of £10,000 a year if the student is coming from outside the European economic area. The visa fees, which I think are currently of the order of a couple of hundred pounds, are not economically significant in comparison with that, but they are already perceived to be an irritant.
Professor Ross Anderson: Well, in a number of cases students manage to get scholarships for their fees. We have endowment funds in the hundreds of millions, which pay fees and modest subsistence for thousands of students. In the case of a student who is on a Gates scholarship, for example, or a Cambridge Overseas Trust scholarship, matters such as visa fees fall directly on their own pocket.
Professor Ross Anderson: I do not know off-hand, but I can get the figures for you. Roughly three quarters of our PhD students, who do the bulk of the graft work of research, are foreign. We rely on them to the extent that if they all went away tomorrow we could not continue trading on the same terms. We would have to start charging enormous fees to undergraduates or educate many fewer home undergraduates, on whom we make a substantial per capita loss.
I am sure that the US fees for equivalent universities are more than £10,000, so the argument that it is the visa fee that is encouraging them to go to the US instead of the UK falls flat on its face.
Professor Ross Anderson: No. What happens inthe USA is that they charge economic fees to undergraduates and subsidise postgraduates. That is one reason why American universities fill most of the top few dozen places in any ranking. If you want to go to somewhere like Stanford as an undergraduate, you might have to pay £20,000 or £30,000 a year, but the profit that they make out of you then subsidises people who are doing research. Harvard, Yale—all the top shops are similar.
I should like to challenge Guy, who said that the number of foreign students is decreasing. We all think that the numbers are increasing and I certainly know from one of my local universities, Northumbria university, that their numbers are drastically increasing, especially with students from Asia and particularly China. I think we now have 4,000 Chinese students at Northumbria university.
Guy Herbert: They are increasing but they are increasing at nothing like the rate that the universities are expected to make the increase, which is factored into their budgets. We have introduced a paper from the Higher Education Policy Institute which discusses that in detail.
To address the point you made about the cost of visas, I am inclined to think that cost is what people blame but it is hassle that makes them make the decision. Unlike Ross Anderson, who glibly suggested that everybody in this room had been to the USA since 9/11, I have not. I have not because I will not put up with all the fuss at the airports, and presumably this country has lost some export earnings as a result of that.
As someone who has been to the USA within that four-year time period, I think that the tiny bit of fuss at the airport is well worth it in order to enjoy whatever you are going to the US to do, and I would think conversely the same would be true of students coming here. Whatever the small bit of extra hassle, if you want to go to Cambridge to do your post-grad, you will put up with that bit of hassle to get here.
Guy Herbert: The point is that people make decisions for different reasons and you choose your options on the basis of a whole basket of decisions that you might possibly make. If we put any particular barriers in the way of people, that will put some people off. It will not put everybody off; it will put some people off.
The cost of a foreign student doing a postgraduate course at Cambridge university is £10,000. The cost of a visa or biometric passport or whatever you like to call it is £200. Why does Cambridge university not absorb that cost and pay the visa? I would suggest that this is classed as an excuse not to have biometric passports for foreign nationals. In the whole mix of things this is a very minor point, as Mrs. Hodgson said, in the context of coming to this country to study.
Professor Ross Anderson: It is a minor point but it is a point that some people might find a sticking point. Next time I ask someone like Mike Lynch or Hermann Hauser for a donation to the lab to fund our activities, what do I do if he turns round and says, “You are paying another of Gordon Brown’s stealth taxes out of this”?
Phil Booth: But there is a point about the impression that people are getting. It is not, as my colleague Guy Herbert said, necessarily the £200 or whatever the current charge is, but that when someone comes to this country they are subjected to an increasingly intrusive regime of fingerprinting and so on. If—this is only anecdotal—people before they come to this country get the impression that Britain is turning into a Big Brother society, they will only have those suspicions confirmed. By going through the process—it is not the fees—we are confirming something that is detracting from our international reputation stretching back over decades and even hundreds of years for being a very free and open country. It is about reputation and how the individual interprets the demands that are put on them that may be more influential than a simple case of who pays the £200, whether it is the institution or the individual.
Phil Booth: I am not suggesting a student; I am thinking of an academic who did not attend a conference that I was expecting to see him at. The reason he gave was that he had heard—incorrectly—that to come to Britain now he would need to have his irises scanned and his fingerprints taken, and he thought that was beyond the pale. So he did not come to a conference. That is only anecdote, only my personal experience, but it indicates the sorts of decision processes that people might be going through that have nothing to do with the fees. The point was made that if it cost £10,000 for the course fees, £200 for the visa is not the problem. This is about the impression that people are getting and the impression that is being given.
And I am suggesting that the cost is an excuse; it is not about that. People come to this country from abroad to study because they want the quality of the research and the fantastic opportunities that this country provides. Having hassle for half an hour to an hour, perhaps twice a year, will not stop a student coming to study here for three years.
Professor Ross Anderson: But, with respect, it will not be half an hour or so. Certainly once and perhaps more often than that, our students will have to take a taxi to Bury St. Edmunds to have their fingerprints done. Why? Because there is not going to be an ID card centre in Cambridge. Why does that happen? I do not know, but there is no convenient public transport. You cannot get the train from Cambridge to Bury St. Edmunds any more. Thousands of students who are already in the country will be put to considerable expense and personal inconvenience. They will spend a day and perhaps £100 on taxi fares to go and get their fingerprints done. That will not make the Government very popular among the student body. As people grumble in the bar, students who have not made up their mind which party to vote for may decide to vote for a party other than the one in power. There are costs.
Thank you very much indeed for giving evidence this afternoon, gentlemen. Would you kindly retire to the back of the Room and would our next witnesses come forward please? It looks as though we have failed to get a replacement for one of our witnesses. Would you kindly introduce yourself?
Gareth Crossman: Certainly. My name is Gareth Crossman. I am the director of policy at Liberty. I must apologise profusely on behalf of Shami Chakrabarti, who was taken ill about an hour or so ago. She says that she is extremely sorry. She was very much looking forward to it. She also apologised to me for leaving me to face the Committee on my own, which I accepted.
I wonder if anyone will check whether Shami has been dining with people from the Home Office recently.
We have been talking about biometrics and I want to move on to another part of the Bill—the detention at ports and the powers of immigration officers. You put in your very full written submission your concerns about that. I should like you to expand on why you are particularly concerned about that part of the Bill.
Gareth Crossman: I would not say that it is a particularly concerning part of the Bill in that it is something that should not happen. This is part of a general trend towards the devolution of what are essentially policing powers towards non-policing agencies, in this case towards immigration officers. Over the last few years we have seen a number of legislative changes that have resulted in non-policing bodies being given, to a greater or lesser extent, policing powers. The Serious Organised Crime and Police Act 2005 contained provisions that specifically set out the carrying out of arrest functions by non-policing bodies.
I am saying that that is something that should not happen, and there may be very good reasons why it is appropriate for immigration officers to be able to exercise the powers that are set out in the Bill. What I would say is that the tradition that we have in this country of having an accountable, properly trained police force is there for a very good reason. The powers in the Bill—the powers of detention and pursuit—create an offence if you do leave, but the accountability structure seems to be rather lacking. I am not sure,for example, whether or not there will be any accountability to the Independent Police Complaints Commission, as I believe has happened with asylum officials. As long as the proper training and accountability are in place for these functions, I do not see that there is a problem.
There is another point that I would like to make in relation to that, but I do not know whether there are any questions on what I have said so far.
Gareth Crossman: Certainly. I would say that there is something that is slightly concerning about the idea of immigration officials, who obviously have a clear role—they are there for immigration purposes—being given powers regarding non-immigration issues over British citizens, which is what would happen as a consequence of the Bill. If those powers are going to be used against British citizens—there might be reason to do so, for example if someone involved in trafficking is a British citizen, so I am not saying that that in itself is wrong—I believe personally that the Bill should make it very clear that those powers are only to be carried out for immigration purposes and not for general purposes, for example if someone has been shoplifting from the ferry.
I understand that Liberty has argued that
“the real problem of illegal working lies not in the deceiving of honest employers but in the intentional employment of those without immigration status by unscrupulous and exploitative employers.”
If that is the view of Liberty, would you not agree, therefore, that biometric identity documents would help to tackle exploitative employers?
Gareth Crossman: I think that I would put a slight rider on that statement. I would say that I do not have evidence to prove this, but I imagine it to be the case that, if there is a problem with illegal working, the problem is more to do with unscrupulous employers, who know full well what the immigration status of their workers is and exploit their position, than with unscrupulous employees who are taking advantageof benign employers by using false identification documents. I am not saying that that does not happen or that it could not happen. Given that that could happen, the existence of a biometric identification document would be of assistance, possibly in the way that a passport or a similar document is, in that it is probably more difficult to forge.
The point that I was making is that I do notbelieve that that is the basis of the problem. If this Government and the enforcement agencies wanted to locate large numbers of people in this country who do not have the right to remain or work in this country, I do not believe that it would be a significant problem for them to do so. Take the case of Morecambe bay; I would be surprised if the immigration officials were unaware that there were problems with illegal work in that area.
I am saying all that by way of illustration. If there are problems with illegal working and with people not having the right to remain in the country, I imagine that the problems lie more in the area of the ability to remove people, although I appreciate that removals are increasing.
Would you not agree that the fact that we do not have any biometric ID, and that people can work here illegally, is a pull factor? People can come here, and events like those in Morecambe bay can happen. The legislation is trying to stop events like that happening.
Gareth Crossman: I do not want to repeat what I have just said. However, if there is a problem with illegal working, and the problem is that there are employers who frankly do not care about the immigration status of their employees, then a biometric identification document will make no difference whatsoever in those cases. I accept that it might make a difference in relation to scrupulous employers. I do not have empirical evidence to back that up but I do not imagine that it is a significant problem.
Gareth Crossman: I suppose that it is a slightly difficult thing to predict, in so far as you would then have to say that as a consequence of the biometric identification document, improvements in removal and the manner in which people who do not have immigration status are located, there are fewer people working illegally. It might be one aspect of what I imagine are many ways of reducing illegal work in this country. To say that it is the way in which this will be done is misleading.
Would you say that the legislation, the direction of travel, what we are trying to achieve, is to reduce exploitation by illegal employers?
Following Mrs. Hodgson’s questions, which are apposite to my question, do you think, in view of what we have seen in the past few years since May 2004 and the abysmal failure of the Government properly to estimate how many EU migrants would enter this country—they were hugely out; they said there would be 13,000 and there are anything between 600,000 and 700,000—that if you are tackling the issue of exploitative employers, this is a red herring? Issues such as low wages, poor health and safety, houses in multiple occupation and people trafficking are irrelevant to the 600,000 people who have come in from within the EU accession states, and indeed the EU10, from 1 January. The argument that these documents will massively help the issue is completely erroneous.
Gareth Crossman: Indeed. Although I made a comment about cynicism in my briefing, I would generally say that this is being done with an intention to address a number of problems, as is the national identification card scheme. My response to it is generally that whether or not that is the intention, this does not happen to be a particularly effective way of doing so. I do not think that the introduction of a biometric identification document will, of itself, have a significant impact on levels of illegal working within the United Kingdom.
In respect of those people from within the EU, would you agree that if you add the cost of bringing in the system to the cost of the pressures on local public services, the system will not really tackle the most immediate issues at local level?
May I move on to clause 16? It has been clear from the evidence we have taken this week that it is one of the most contentious and controversial clauses in the Bill, for a number of reasons, mostly because it seems to add unnecessary and all-encompassing powers to those that already exist. In its written evidence, Liberty expressed strong reservations about clause 16. The Government claim that it will help unaccompanied asylum-seeking children. What do you say to that?
Gareth Crossman: When I originally wrote about this, I said that I was not certain what the policy aim was behind clause 16. I understand now that one of the main reasons for it is that it will make it possible to keep tabs on people up until they reach an age at which they can be removed.
Not being an asylum organisation, we do nothave particular expertise in this respect. However, I understand that rules are currently being negotiated for the treatment of unaccompanied asylum seekers. That being the case, although it might be appropriate to be able to keep tabs on them, those negotiations should be finalised before that part of the Bill comes into operation. Furthermore, I have reservations about the drafting in the legislation. I had a brief call before coming here in which somebody asked me about that. I took it on the go and said that I would say something about the negotiations. I apologise, but more evidence might be appropriate at a later time.
Gareth Crossman: Yes, I do. Again, it is very open-ended. There is no statement on the extent of the conditions, on how far they may go, or whether they could effectively amount to control orders. There is nothing about that in the Bill. I appreciate that it could be said that any legislation must be read in accordance with the convention and so nothing too onerous could be placed on an individual. However, there have been a number of occasions in which, such protection having not been in a Bill—it was just inherent—conditions have been struck down by the courts because theywere oppressive. When the decision is made aboutthe appropriate conditions, I would like it to be a requirement in the Bill that when the immigration officer makes a decision, the conditions are reasonable in all circumstances. That would mean that there would be a prompt to realise that while you might be doing something for a particular reason, you simply cannot place excessive restrictions on where somebody can reside.
Gareth Crossman: I think not, actually. My concern is that immigration officers have certain responsibilities and were they to place restrictions on a person who then absconds, they might face criticism and consequences for their job as a result of not having placed appropriate restrictions. Somebody more removed—possibly judicial involvement—might be more appropriate when deciding what is reasonable. There might be a tendency on the part of an immigration officer to err on the side of cautionwhen determining what residence restrictions are appropriate.
May I ask about deportation in clauses 28 to 35? What difference do you think those clauses will make to the current arrangements for deporting foreign criminals?
Gareth Crossman: That is difficult to say. Since June or July 2006 there has been a strong presumption in favour of deportation. In practical terms, the number of cases in which there will now be deportation that would not have occurred before might not be huge; but I do not think it is appropriate for this legislation to remove whatever residual discretion there was. It is important that there be some form of residual discretion to take into account those cases in which a person, who might have been in prison for a very short period, is not a risk to the community, as well as retaining the residual discretion that would cover somebody with family ties that might result in their not being deported under article 8. That is why I would say that even though the number of people who mightbe deported is not huge, because of the strong presumption that we have now, the principle is important.
So for you the requirement for residual discretion to deal with one case is a point of principle, whatever the benefits of having a system that is much clearer and has fewer appeals and fewer mechanisms for people to escape through and abuse.
What I was trying to get to was whether you were stating a point of principle from which Liberty would not depart or whether, in trying to administer an immigration and deportation system in the widest national interest, there is a point at whichit is legitimate to have a trade-off about bad cases making it easier, or possible, to administer a system that does not end up with the terrible backlog that we have now because the system is so difficult to administer.
Gareth Crossman: I was talking about principle, but let me expand on that slightly. I think that a message is being sent out. As a nation, whatever administrative process we use, we work on the principle that each case is decided separately, on its merits; even if there is a presumption one way or another, you as an individual will have your case decided on the facts. If we move towards a system of automatic removal we will have moved away from that. We will be sending out a message that the individual facts are not particularly relevant; your case will not be decided on its merits or otherwise—you are subject to automatic deportation, therefore automatic deportation you will have. I imagine that immigration is a difficult field to work in; everybody who does so faces difficult decisions daily. When we pass legislation that moves us away from the idea that cases are decided on their merits, we send out an unfortunate legislative message to those who work in the field.
Gareth Crossman: One of the grounds for saying that would be that it can be certified that one can be removed, on the basis that to do so would be in breach of one’s convention rights. I would not go so far as to say that that aspect of it would raise issues under the convention. However, while it is perfectly permissible under article 5 to hold people, the presumption that people who are going to be removed will be held until such time as they are removed might raise issues under article 5.
Gareth Crossman: As I understand it, the position now is that pretty much anyone who has served a period of imprisonment will be deported, but I shall leave that aside. The idea that somebody will be removed if they have served a custodial sentence for an offence that is listed in the order, which ranges from messing with nuclear weapons to shoplifting, means that people will inevitably be deported who have served very short custodial sentences in circumstances in which that was the only option, but who would not be suitable for deportation. Of course, they might well be deported now anyway.
Gareth Crossman: If there is a concern over confidence in the system, a lot of it can be placed at the door of the mistakes that have been made. There have been errors, when people who clearly could and should have been deported have not been, whether because information was not passed from one body to another or because there was misadministration. If you are a judge who is making recommendations for deportation and you find that a serious criminal, who presents a major risk to the public, has not been deported after their release, that would certainly dent your confidence in the system.
Let me take you to the Dog and Duck in Peterborough. We are propped up at the bar, and my constituents, who are the salt of the earth from north Cambridgeshire, say: “This foreign prisoner debacle is all about the Human Rights Act, isn’t it? It’s abused, because if you are sent to prison, period, it is not for not paying your TV licence, it is because you have been very naughty. These lawyers are misusing the system and abusing the Human Rights Act in a way that was not intended. It is unfair.” What would be your response to that sort of comment?
Gareth Crossman: Having been brought up in Cambridgeshire, I would look at them as fellow Cambridgeshirians. I would say to them that it is extremely unfortunate that there has been so much misinformation about the Human Rights Act, which has led to people saying that human rights have become the new health and safety, that “You can’t do that because it’s human rights.” It has not been helped by a succession of stories of people being released on parole on an early date when clearly they should not have been. There are other situations in which people have raised human rights; it has gone so far as people sitting on rooftops eating Kentucky fried chicken and police officers not going up because of their human rights. That is nonsensical.
A few weeks ago, we saw the idea that human rights prevented the pictures of people who were on the run and dangerous being made available to the public in order that these dangerous criminals could be apprehended. It is nonsensical, but unfortunately it has permeated people’s conception of what human rights constitute. That is an unfortunate starting point.
I have no doubt that there are people who would otherwise be deported because they have served a period of imprisonment, but who cannot be removed from this country because to do so would be likely to result in them being tortured or killed. That is a bar that is placed upon deportation. I think people would be a lot more understanding of that sort of bar if we moved away from the idea that human rights were helping people to eat their Kentucky fried chicken in peace. The idea of human rights has now been so badly affected by all the rubbish, frankly, that, when we try and rely on human rights, people go from the starting point, “Oh, it’s that human rights stuff again, isn’t it?”
So is the corollary of whatyou are saying—given that we are not talkingabout automatic deportation, but a presumption of automatic deportation, which is a completely separate thing—that the Minister and the Government will have to tighten up that wording in order to ameliorate the misinformation, as you put it, about the HumanRights Act?
Gareth Crossman: I was slightly uncertain myself when I was reading this. For example, an article 3 bar on removing someone is because it is not safe to do so. I am not quite sure how that sits with an existing presumption that the person will be deported, if doing so would be in breach of article 3. I have to admit that when I looked at that, I was a bit unsure what exactly the purpose of this continuing presumption might be. I have thought about this essentially in terms of the Human Rights Act and the refugee convention; it might have more applicability to some of the other exemptions in the Bill. Certainly, yes, it struck me that I was not quite certain what that was getting at.
I want to move on to a point you make in your submission about the ability to amend the regulations that will flow from this, because Liberty points out that there is an awful lot left offthe Bill and that some of what is left off is hugely important. What areas would you like to see covered by such amendments?
Gareth Crossman: Specifically, it would be in relation to biometrics. What is created here? I said biometrics, but a lot is not about biometrics, because the Bill is clear that it could be about biometrics or about anything else that we might happen to want to make it about, according to order. I do not think that it is too much of an exaggeration to say that, for regulations about the biometric identifiers in the Bill, any order could make information cover whatever we want about whoever we want, within the scope of the Bill obviously, and we can make that information available to anyone we want and be forced to do with it pretty much whatever is required.
Trying to pin the tail on the donkey as to whether that is right or wrong is impossible when you are talking about orders, because you do not know the reasoning behind them. Over the last few years, there has been a significant move away from the use of parliamentary order—which is of course an absolutely essential and fundamental part of the law-making process—as the way in which we flesh out the bones; the policy is decided and the order is the way we put it into effect. We are moving towards a situation that we are now seeing consistently in legislation, as in this Bill, where the serious policy-making decision is left to order. I do not think that that is an appropriate way to legislate.
Okay, let us say that an order is being passed and, if we are talking about biometrics, it provides for 12 types of use that could be made of the information. You, asa parliamentarian, are sitting there and thinking, “Well, 10 of these are fine and I do not have any problem whatsoever with them, but I think that two are not appropriate.” Now, your power to do anything about that is to let the order either stand or fall. You cannot really do anything about it. If we are moving towards a world where the Government are removing from parliamentarians the ability to make the proper policy decision and to apply the proper level of scrutiny, which Parliament should be entitled to give, parliamentarians ought to demand that, as part of the order-making process, they should be able to say that those two uses are not appropriate and, as a consequence, 10 are fine, but the two will not do. I do not understand why that is such a terrible thing to ask for. All that Parliament is saying is, “Give us the level of scrutiny.” The level of detail which is in the legislation nowadays, and the amount of it that we have to get through, is such that we cannot fit it all on to the face of the Bill. If that is the case, proper amendments should be able to be made to orders so that proper parliamentary scrutiny can be applied.
That is very interesting. I suspected that the reason for this recent growth is that it removes the policy parts, which now go into the order, from proper scrutiny in the House of Lords. I think that that is the reason. However, it is also the case that Ministers will recognise that passing bad legislation is worse than suffering the embarrassment of minor amendments as the Bill goes through in the first place. When they look back in the autumn of their political careers at some of the legislation that they have put through, former Ministers from all parties will acknowledge that.
To return to this Bill and the biometric sections that we have discussed, I know that one of your other points that will be contentious is that the application of these provisions might be divisive, affect community cohesion and be used unfairly against minority groups. Would you expand on that?
Gareth Crossman: Yes; I think I was very careful and said that it has the potential to happen, not that it will. My concern is that if it is the case—and it seems to be—that it is an accepted function for police and immigration officers to make random checks to ascertain immigration status on people using public transport, for example, issuing a biometric document might assist that.
I notice a couple of shaking heads. A couple of years ago in The Guardian, Des Browne, the former immigration Minister said that it was a perfectly legitimate use of the powers and resources of police and immigration services to carry out spot checks on public transport. It does happen. I am sure that the possession of a biometric immigration document would be a helpful way of finding out whether someone is entitled to remain in the country. The question is whether they should be forced to carry it? If it becomes common usage, will we find that a person who sounds a bit foreign, who does not sound like a European, and does not happen to have their biometric immigration document on them, will be considered a bit suspicious as a consequence? Would that be grounds for further investigation of them? I believe that has the potential to be racially divisive.
As I understand that it will not be compulsory to carry it, will the corollary of that be that if a person looks like someone who may well have one of these documents, they will be required to report to a police station, which could be even more intrusive. I can quite see that, were it to become an extra piece of available information, that might well lead to changes in policing habits.
Gareth Crossman: Yes, I absolutely agree. I think the problem is that the intention of both Parliament and Government, at the time legislation is passed, is removed from what happens when these laws are put into effect. A good example of that is section 44 of the Terrorism Act 2000. When passed, it was clearly intended to be used as an extra tool to carry out stop and search, without suspicion, which is normally the trigger requiring stop and search, the legislations says, in terrorism-related circumstances.
That power has clearly been used consistently—because most of the metropolitan area of London is a designated zone—as a stop and search mechanism against young, male Muslims, to the extent that both the Metropolitan Police Authority, giving evidence to the Home Affairs Committee, and I believe, Andy Hayman, a few weeks ago, have said that its use is undermining community relations and becoming very divisive. I do not believe for a second that it was the will of Parliament that that be the use of section 44 and that that would be how section 44 worked out. As a consequence, however, there is the potential, when there are broad-ranging and ever increasing police powers, that the document might become the one that people who do not look or sound European might be expected to carry as a matter of course, and a failure to do so might be considered suspicious.
Gareth Crossman: Again, the drafting is extraordinarily broad. What you are talking about is the creation of a power that will allow a police officer or an immigration officer—on the authorisation of a senior officer, I grant—to enter someone’s home to locate an immigration document such as a passport if they think that there is one there. Well, most people keep their passports in their homes. The clause does not require that that passport or passport application be anything to do with the offence for which a person has been arrested. The potential is quite broad.
I am not going to say that there are not situations in which it might be appropriate to enter someone’s property in order to locate a document if they arenot an EEA resident, but you need something inthe legislation to tie the exercise of that power to the relevance of the document in the course of the investigation. That could be either because it is relevant to the person’s offending behaviour or the allegation thereof, or because, as is required under clause 41, the removal of the document is necessary for immigration purposes.
The trigger power to enter a property does not require finding the immigration document to be relevant to removing it. You can remove the document if you think it is necessary because it would facilitate the removal of somebody without immigration status, but the power to enter the property does not require any of that. It is sloppy drafting. If you are doing this for a particular purpose, you need to ensure that you limit it to that purpose, unless it is to allow people who are not European citizens to have their homes entered every time they are arrested, in which case it is a very good law.
Gareth Crossman: Yes. The principal thing that I would try to do would be to use the trigger for the removal of the document in clause 41, and attach it to clause 40 as well so that there is some causal link between taking the document and the entry of the property in order to do so. It would at least provide such a causal link between the need to take the document and the reason for which the person in question is under arrest.
I want to follow on from the interesting exchange on people being required to carry documents and whether that would lead to the arbitrary stopping of people in the road because they look funny or whatever. My understanding is that there is no compulsion in the Bill to carry documentsso it follows that, because it is not mentioned, people will not have to carry them. We would obviouslywelcome that.
My concern is why you believe that because the extra document—a biometric ID card—will exist, the police will be any more likely to stop people arbitrarily. I do not quite understand that. Specifically, I thought that such arbitrary behaviour on the part of the police was actually illegal under the Police and Criminal Evidence Act 1984. Could you elaborate on that?
Gareth Crossman: There is nothing in the Bill to force compulsion, but what is to stop the Government from making an order that forces someone to carry the document? This goes back to the point I made about the power to amend orders. I would turn your question on its head. Is there anything in the Bill that would prevent an order being made that would require the carrying of this document at any time. Do you think there is?
On a point of order, Mr. Amess. I understood that the Bill required regulations to be subject to affirmative resolution in both Houses. Is that not the case?
I have just asked the witness, Mr. Chairman, if it is his understanding that they are subject to an affirmative resolution.
Further to that point of order, Mr. Amess. That is exactly right, whether the regulations are subject to an affirmative or negative resolution does not affect their ability to be amended.
I would like to get to the bottom of this and I will try to do so quickly, Mr. Chairman. It seems from these non-points of order that perhaps a general point is emerging, which is that were the Government to try to do what it is suggested they may do, in other words introduce an order requiring compulsion, that would be subject to the normal democratic process. We will certainly use the later Committee stages of this Bill to ask the Government whether they intend to do so. My understanding is that they do not, which will perhaps alleviate your concern.
Perhaps we could answer the main point, which is whether it is illegal for the police to arbitrarily stop people.
Gareth Crossman: According to the Government it is not. I go back to Des Browne’s quote. He said that, as far as he was concerned, it was a perfectly legitimate and proper use of powers to stop people arbitrarily. When I say arbitrarily, there would have to be a suspicion that a particular person might not have residential status. I should perhaps be more cautious when I use the word arbitrarily—but to stop people on the basis of suspicion of their nationality. I think this is with regard to your report which said that carriages on London underground trains and buses were being entered and people were being checked to see whether or not there was anything that might lead to a suspicion that they might not be a person who had immigration status.
I would also say that there has been a move in recent years towards more arbitrary policing powers. This is very evident in the Serious Organised Crime and Police Act 2005, which, for example, made all offences arrestable, and in the use of the powers I have referred to under section 44 of the Police Act, which require no suspicion whatsoever for stop and search. If these powers are being over-used, is it that much of a stretch of the imagination to say that, if you do not require any reasonable suspicion to do a stop and search and you stop somebody, you might want to inquire about the immigration status? If you are operating under section 44, which says you do not need any reasonable suspicion—
I am quite worried by what you say. If the police are arbitrarily using their powers, that is a serious concern and perhaps we can come back to it in a different form.
Gareth Crossman: What I would be very careful to say is that I do not believe there is a tendency in the police to misuse their powers as a matter of course. What I would say is that there is a tendency in this Government to draft laws and publish laws of such broad scope that the grey area where the police are not exactly certain about where their powers begin and end has grown to such an extent that it is far more common for people to be stopped and searched and for powers to be used.
This is something that the police have occasionally expressed concerns about. Somebody coming out of police college is not sure about the extent or otherwise of their powers in a way that used to be the case when you had serious arrestable, arrestable and non-arrestable offences. I realize I am going off on a slight tangent here and I will let you continue with your question.
I think you need to be slightly more specific about what you are alleging, if you do not mind me saying so, because the reason I came back to this line of questioning was that it seemed there were allegations being made that the introduction of biometric ID cards for foreigners would lead to the police stopping people because of what they looked like. I do not think you are alleging that although you have some broad concerns about the way that the Government are drafting regulations on stop and search generally. Is that correct?
Gareth Crossman: If you create a document called a biometric immigration document, which everyone knows is a document that people who are not EEA citizens carry with them, you will also know that if people who do not appear to be European citizens do not have such a document with them it might mean that they are not in the country legally. I am not saying that this will lead to improper use of power as a matter of course, but that the creation and carrying of this document might lead a police officer, who is stopping and speaking to someone who is clearly not of European origin, to believe that an appropriate question to ask is whether they happen to have any identification with them.
I am sure that if the identity card is introduced people will be asked for it routinely whether or not regulations can be passed and whether or not it is a requirement to carry it. I am trying to draw a distinction between what laws are passed and the operational use on the street. That does not mean that I am saying that these powers will be used improperly. What it means is that when you get to regular policing practices such as arresting someone under section 21 of PACE, which says that one of the grounds is to establish identity—
So you are not saying that they are more likely to be arrested, but that when they are arrested this is likely to happen. So someone is not more likely to be picked up as a result of the Bill.
You do not think that people are more likely to be arrested as a result of the provisions in the Bill. That is useful clarification.
Gareth Crossman: It could, in theory. The problem—again this is my concern about what will eventually happen with identity cards—is that people are not in the habit of carrying their passports around. People are not expected to do so. Once the system is bedded in, both in relation to this document and to the ID card, I would not be surprised if it became common practice for people to carry them because it is convenient and easy to do so. That is fine, as long as that does not lead to suspicion that failing to carry the document is in itself suspicious.
May I test everyone’s patience by stretching this point a little further? I completely accept that previous social frameworks may have inclined—I will be fairly specific about this—some police officers to stop certain British citizens who, frankly, were not of European descent. Do you not think that that situation has changed and continues to change, given the greater numbers of white, non-European immigration into the UK, and that better police training could obviate what are understandable concerns.
Gareth Crossman: I should reiterate again that I was not implying that any sort of improper action on the part of the police would take place as a matter of course. What I have said is that the creation of these documents will increase the potential for this to become a racially divisive matter. I sincerely hope that that does not happen. One of the reasons why it would not happen would be if there were police training to ensure that people do not get asked for cards as a matter of course. But I maintain that the creation of this sort of document has the potential to be racially divisive.
What has emerged in the last 10 minutes is that you can take a view on whether it is fine to have a piece of biometric information that you have to carry around with you at all times. That is just an issue between us. But what is interesting about the Bill is that to roll it out specifically to foreigners first will itself give rise to the danger that you think, not unreasonably, will happen. The roll-out method that the Government have chosen for the ID cards, starting with this Bill and a certain group of people, may be a particularly bad way of introducing the policy.
Gareth Crossman: Yes, that is consistent with “Identity Cards: the next steps” a few years ago, which said that this is what will happen. The Government said, “This is what is going to happen. We are going to roll it out; we are going to start off with non-EEA residents who are in the country for over three months.” At the time, I said that this might be one of the consequences but, to be fair, it is consistent with what the Government have said will be how the national identity scheme will be rolled out.
Is it your understanding that those subject to immigration control in this country generally have some kind of document proving their immigration status?
Gareth Crossman: As I said, I think that is what may well happen. As Damian Green said, this is the first step to a roll-out of a national identification scheme, and the issue of a national identity card for every person. Whether or not you have to carry it, it will be a fundamental shift in society.
You are clear, though, that there are no provisions in the Bill to require people to carry these cards, and you will have seen the contributionon Second Reading that specifically ruled out our intention to do that.
Gareth Crossman: Yes. There is a difference between saying, “We will not pass provisions that will make you carry a card,” and ending up in a situation in which cards might be carried by people as matter of course because it is easier to do so than not to do so. That means that those people who choose not to carry cards, or do not want to carry them, might be viewed as suspicious.
But there is no getting away from the situation that those subject to immigration control currently already have documents proving their immigration status.
Gareth Crossman: I do not for one second say that the existence of an identifying document is not part and parcel of our existence. Nearly every one of us has a passport or other identifiers. I also totally accept that we are moving towards a situation in which every one of us, non-EEA or not, will have a biometric identification document.
What this Bill does is allow for non-EEA residents, as well as having a biometric identifier, to have unlimited information about them passed to an unlimited number of people. My concern is less with the biometric and more with what the scope of the Bill allows: mass information-sharing between an unspecified number of bodies. That is what the Bill would allow. I do not want to get overly drawn on the issue of biometrics, when what the Bill does is allow for vast amounts of information to be shared between a great number of bodies, with no limitation on the Bill as to what that means.
But you would agree that there are limitations in the Bill to limit the powers to take biometric samples, to check for immigration purposes and procedures. The Bill specifically says that, does it not?
On the same point, which has bounced around a few of us, as the Government intend to introduce a national identity scheme, does it not therefore make sense to start with foreign nationals having the first biometric cards?
Gareth Crossman: It has to be rolled out somehow. If you are going to have a national scheme you have to start somewhere. I think there is potentially a danger, which I hope does not occur, that it would be unfortunate to pick a group of associated people, who are perhaps more vulnerable, are non-EEA residents and who do not have a right to remain in this country like the rest of us do. But, if you have to roll it out, you have to roll it out, and that is the choice that the Government have made.
But it is going to be rolled out and will be incremental. The Government will start with foreign nationals, followed by British citizens and then EU citizens. That will follow within a year. The problem that you have identified will only last for a year at the maximum, if it exists at all.
On Second Reading—I have the transcript—the Minister said, as he did earlier, that migrants already have documents that they present in order to gain entitlement to services. He also said that the only change being made was that it would be possible to check a secure document, rather than an insecure one, which of course is a technical argument. Are you making a distinction between biometric documents to be presented as of right and the existing documents presented to gain entitlement to services? Was that your point when answering Mrs. Hodgson?
Gareth Crossman: It is a bit difficult to answer that. Not knowing what the regulations will provide for, it is difficult to answer such a question in detail. As I have said, the difference between people being asked to produce something, whether a biometric document or a passport, in order to establish whether they are who they say they are, and being asked to do so in order to gain entitlement to services is not problematic. However, to use that as a Trojan horse in order to pass legislation that can say a lot more is problematic.