Committee stage in the Lords
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The Deputy Chairman of Committees (Viscount Simon)Labour- Quote
- If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes. Clause 5 [Registration regulations]:
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Lord AveburyLiberal Democrat- Quote
- moved Amendment No. 13ZA:
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The Earl of ListowelCrossbench- Quote
- As an aside and on what is perhaps tangential to the question before us—I also apologise if this anticipates later debates—there are concerns about getting the age assessments of children right. I would grateful if the Minister could explain either now or later today what progress has been made towards establishing age assessment panels and perhaps age assessment centres so that greater expertise is made available. At the moment, many age assessment decisions are appealed and then accepted. However, children are caused a lot of distress if they are judged to be adults when in fact they are still children. This point may well arise in a later debate, but clearly it is important to ensure the utmost professionalism in determining these important questions.
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Baroness Anelay of St JohnsConservative- Quote
- I have a great deal of sympathy with this amendment, which is hardly surprising since it is virtually the same as that tabled and spoken to by my honourable friend Damian Green in another place. As I explained to the Refugee Children’s Consortium, the reason I did not table an amendment myself is that when the matter was debated in Committee in another place, at the end of that debate my honourable friend made it clear that we accepted the Government’s explanations as far as they could go. He said that the Minister had, “addressed all those individual issues very fully and very enlighteningly”.—[Official Report, Commons, UK Borders Bill Committee, 8/3/07; col. 263.] So I am somewhat prevented from exploring the issues again. However, the noble Lord, Lord Avebury, is absolutely right to bring them to the attention of the Committee. I agree that it is important for the Government to put on the record how they are going to cope with the science side of ensuring that biometric information taken from children is worth being used. It will be an intrusion into a child’s life and there is the separate issue, referred to by the noble Lord, Lord Avebury, of whether it is right for children to be expected to provide information. I do not address that point now because other amendments look at it in more detail and in the broader sense of human rights. However, if one looks at the scientific issues themselves, there is no doubt that several research documents point to the unreliability of biometrics when taken from children, particularly in facial recognition procedures. I would be grateful if the Minister could refer in particular to those matters. Noble Lords who took part in the debates on the Identity Cards Bill—I was glad to see that legislation move out of my life on 26 March last year; it finished its life in this House and I hope never to see its full implementation as regards a national identity register—will recall that we considered what kind of information should be covered by biometric registration. The noble and learned Baroness, Lady Scotland, now the Attorney-General, told us that there would be reliability in the use of biometrics because they would come from three sources. She told us repeatedly that we could be reassured because there would be fingerprints, iris recognition and facial recognition. We looked in particular at the problems associated with taking fingerprints and how they may be damaged in children—that is less the case than in adults, but the risk is there; how with iris recognition there is always a certain failure rate; and how facial recognition for children does seem to present problems. At the time I explained in detail my own difficulties when I became a volunteer guinea pig and had my own biometrics registered. The Home Office brought its van to Black Rod’s Garden, and we were able to visit it and get our own identity documents. I thought that I would put all my prejudices aside and undergo the process. Not only did the uplink keep failing but the facial recognition was a problem. For some reason I have a difficult bone structure; they called it bland. I have a bland face; that’s me. It is an absolute shame. They took several attempts before they managed to capture enough of a facial recognition. I put up with it because I was trying to prove a point one way or the other—and, boy, did I satisfy myself that there were problems. It comes back to the questions of how reliable this will be and what it will do to children to go through it. Will they have to go through the procedure repeatedly as their facial structure changes over the years? That is the kind of information on which we need reassurance from the Minister.
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Lord HyltonCrossbench- Quote
- When the Minister replies, I urge him to take full account of the report on the Bill by the Joint Committee on Human Rights, in particular pages 11, 12 and 13, where the bold print sets out very clearly what we need to know.
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Lord DholakiaLiberal Democrat- Quote
- I do not intend to disturb the Minister later, but my noble friend Lord Avebury raised very important issues. He mentioned that he was awaiting replies to questions he had posed previously. I raise this matter now for the simple reason that we are in Grand Committee where we have the disadvantage of not being able to divide on some of the issues that most concern us. If we do not get these replies on time, we intend to use the full force of Report and Third Reading to pursue the matter. The fact that we cannot do certain things in Committee is often resented. I put it on record that we may prolong this opinion-seeking approach right up to Third Reading.
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Lord Bassam of BrightonLabour- Quote
- I shall respond to the points made in this very important debate. I cannot resist commenting on the notion that the noble Baroness, Lady Anelay, should be considered bland in facial recognition terms. I have never thought that she was bland, and she certainly is not in personality. It would be a travesty if that was ever thought to be the case. I should apologise for the technology; it seems fairly disgraceful in those terms. The noble Lord, Lord Avebury, asked about the biometric information heading. It is an integral part of these provisions that a person subject to immigration control registers their biometrics. That is what frames the debate and the legislation. Amendment No. 13ZA would prevent the Secretary of State from requiring a person subject to immigration control who is under 16 to apply for a biometric immigration document. When a person is granted leave to enter or remain in the UK, whether a child or an adult, they are currently issued with an immigration document which demonstrates their right to be in the United Kingdom. The intention behind the biometric immigration document is to phase out the less secure forms of documents to replace them with a reliable biometric document. This amendment would mean that the documents provided to children would be less secure and hence less trusted. In the near future it will also be contrary to our European obligations if a biometric card is not issued to those under 16 years of age who are granted leave to remain in the United Kingdom, as EC law will require this. In our view taking biometrics from children is a positive factor in combating their trafficking and exploitation through making identification more certain and secure. We need to be able to fix children to a single identity to make them less attractive to those who wish to exploit them. This will reduce the risk of a child being passed off as someone else’s child in that exercise. The Border and Immigration Agency has experience over many years of taking fingerprints from children aged five and upwards without difficulty or, for that matter, without public concern. Fingerprint patterns do not change as a child grows older, and the technology is capable of recognising images taken from a person at a relatively young age. We already record and check the fingerprints of children requiring biometric visas and the children of asylum seekers issued with application registration cards—ARCs as they are often know. From 2002 to 2006, the Border and Immigration Agency issued some 39,401 application registration cards to children aged between five and 16. Biometric data collection technology is being rolled out to all our overseas posts and the offices of our commercial partners. UKvisas has already collected biometric data, as part of the visa application process, from 5,679 children aged five to 16 between September 2006 and the end of April 2007. That number will increase as the number of overseas posts able to issue biometric enabled visas increases during this year. I turn to our commitments in the European Union. In 2003, the United Kingdom signed up to Council Regulation (EC) No. 1030/2002 of 13 June 2002—laying down a uniform format for residence permits for third-country nationals—which requires a standard residence permit to be issued to anyone, including a child, authorised to stay in a member state. A forthcoming European regulation will require the UK to issue a biometric card containing fingerprints and a photograph when it authorises a person to stay in the UK. The biometric immigration document will be how the UK complies with this obligation. It will be issued to those aged under 16 as the authorisation which permits them to be in the UK. Discussions are continuing in the EU on what age children should have their fingerprints recorded—and I think that the noble Lord, Lord Avebury, referred to that debate. However, there appears to be a consensus in the European Council that the fingerprints of children will be recorded from at least six years of age. Clause 6(3) provides safeguards by requiring any regulation made under these provisions which relate to those aged under 16 to make provisions similar to Section 141(3) to (5) and (13) of the Immigration and Asylum Act 1999; that is about fingerprinting children. Staff dealing with children and young people will have to receive relevant training and will be obliged to conform to guidance to enable them to do so sensitively. Biometric immigration documents issued to children aged under 16 will not be designated under the Identity Cards Act 2006. We consider that 16 years is an appropriate level to set as the first age where an individual is eligible for an identity card and registration on the national identity register. Unlike immigration documents, which are required by both children and adults, identity documentation is, in most cases, first required when individuals become economically active; that is, have the right to leave school, marry, start work and open their own bank account. Biometric immigration documents issued to children aged under 16 will expire after five years or when their leave expires, whichever is sooner. I hope that that answers most of the points raised. Of the others, I think that the most important one is the reliability and viability of biometric fingerprint technology. What can I say about that? Biometric fingerprint technology is used worldwide and is recognised as a secure form of matching identities. We have a lot of experience of using fingerprint biometric technology on children as young as five. Fingerprint patterns and characteristics do not change as a child grows older, and the technology is capable of recognising images taken from a person at a young age. The biometric immigration documents issued to children under 16 will expire in no later than five years. We will need at that point to update facial images, just as we currently do for passports. As part of the process, we will update any other biometric and non-biometric information as required. I think it was the noble Earl, Lord Listowel, and the noble Lord, Lord Avebury, who asked what progress we were making on establishing age assessment centres. I do not have that information today, but I undertake to correspond with noble Lords on that point and to share the fruits of that correspondence with all colleagues in Committee. The noble Lord, Lord Avebury, asked whether the points raised in debate on Monday will be responded to quickly. I have signed off the correspondence this afternoon. If the noble Lord likes, I could ask someone to collect it and deliver it to those Members in Committee who want it this afternoon if that would help them, although I think that our debates have moved on a bit from some of those issues. Why fingerprints? They are widely used across the world. I have explained about expiry, and the software cost of procurement is already accounted for. We already have considerable experience of using biometrics with children. This makes a lot of sense, and it offers important protection, enabling us to help those young persons who we think are at greater risk of abuse and exploitation through trafficking. There are many plus points in approaching the age at which we require biometrics, and those benefits will become manifest as this develops.
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Baroness Carnegy of LourConservative- Quote
- There are clearly differences of opinion between the noble Lords on the Liberal Democrat Benches and the noble Lord. On the general point about fingerprints, the noble Lord said that the system is used worldwide, which it is, and that it is thoroughly reliable. I hate to say to him that the clause applies to Scotland. He may know that recently a lady police officer was said in court to have been present at a certain place at a certain time when a crime was committed, because her fingerprints were found there. She denied that. She was then accused of perjury, because the fingerprint system is considered to be completely foolproof. That was a terrible thing for her. Subsequently, it was discovered that the fingerprint matching system—which is separate in Scotland, I think it is a fingerprint agency there—was not in fact foolproof, and she received a very large sum in compensation rather than all that going back to court. The noble Lord’s officials may know about that; I cannot expect him to know about it. It was a very big case in Scotland not very long ago. This business of fingerprints is not completely simple. The final inquiry has not yet take place, and we may hear more. I urge a little bit of caution, particularly if it is more problematic with children. A six year-old’s fingers are a bit podgy. I have a fruit bowl with some of my great nephews’ and nieces’ fingerprints on it, which they did at school, and it is pretty blurred. I am sure that the system is very much better than that, but I can see that there might be problems.
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- Baroness Anelay of St JohnsConservative
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- I am grateful to my noble friend Lady Carnegy, because she has highlighted the two issues of the reliability of fingerprint technology per se and the reliability of its use regarding children. I am glad that she quoted the case in Scotland, because as a result of that case I looked more closely at the science of taking fingerprints. Perhaps I, like so many lay people—even though I had been a magistrate—had assumed that when matching fingerprints there was a standard number of points that one used to achieve a match. It was only as a result of the case in Scotland that I appreciated that different methods are used in different parts of the world. It would be very helpful if the Government were able to tell us how points of reference would be used for the matching process in regard to fingerprints.
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- Lord Bassam of BrightonLabour
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- I shall not be able to do that this afternoon. Cases like that are very rare. We all know that fingerprint collection has been going on in the world of criminal investigation for well over 100 years and probably longer than that. From time to time, of course, there will be an occasional error, but it has proved to be an extremely reliable source of providing evidence and matching a person to a crime. Without it, many high-profile cases would never have been cracked. It is a proven science. There will always be the occasional error, but we have a great deal of experience in that and internationally it is viewed as being very reliable. We have built it into our thinking and that is the case internationally. On the point made by the noble Baroness, Lady Anelay, I shall try to provide some more background for Members of the Committee. That would be quite a useful exercise and it might offer some greater measures of reassurance.
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- Baroness Anelay of St JohnsConservative
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- In his kind offer, the noble Lord referred to this as a proven science. I hope that the letter the Government will send us will reflect on the fact that it is less a science than a matter of interpretation. One relies on those matching the evidence to give their interpretation. It is not a science as such.
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Lord SelsdonConservative- Quote
- Being the exception, I had not wanted to intervene, but the other day I found out that in 45 years, I have spoken more on the Identity Cards Bill than on any other subject. Like my noble friend, the system has failed to recognise me. I have become something of an expert on fingerprints. Whenever I travel now, I put my finger into a slot in various terminals and if I am recognised I am admitted and given a free drink, but my recognition rate is only two out of seven. One of the reasons is that if one works fairly hard at various jobs in rural areas, one can rub away the end of one's fingerprint, so it is not reliable. I can assure the noble Lord that fingerprints may be reliable in certain circumstances, but for the traveller it is a most unreliable science. It is also great fun. As I have explained before, if one fails to get in for the free drink, one can take a piece of plastic, put it on one’s finger and press it into the slot it recognises again the fingerprint of the previous person and one is admitted and given a free drink.
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- Lord Bassam of BrightonLabour
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- I congratulate the noble Lord on being persistent in getting a free drink. I hesitate to say that Conservative Peers are always after a free drink because I think that would be a terrible calumny on my part. I am extremely amused by the example.
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- Lord AveburyLiberal Democrat
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- It is remarkable that we have only a dozen people in this Grand Committee and two of them have been the subjects of erroneous recognition. I am particularly alarmed by the story told us by the noble Baroness, Lady Anelay, because it is an absolute calumny to describe her as the system did. I bitterly resent such a result from a system in the House of Lords. If we in the House of Lords cannot get it right, what likelihood is there that the tens of thousands of systems spread across the country will be more accurate? The noble Baroness mentioned the different levels of accuracy to which a system may be set, and as the noble Earl, Lord Listowel, will remember, we heard evidence in Sub-Committee F of the Select Committee on the European Union—I have the report on SIS II in front of me—when we were told by the expert witnesses that one can set the system to varying degrees of accuracy which would enable the fingerprint recognition system to let through a given percentage of false positives. The technology is not 100 per cent. The Minister should not pretend that we have a foolproof method of determining everyone's identity. He did not mention iris recognition but I shall not press him on that because, on a later amendment, I intend to discuss in greater detail the merits of iris recognition and what a pity it is that we have not persevered with that system as an alternative, although it is very difficult when the rest of Europe continues to go down the fingerprint route. Of course, we have the legacy of systems that are held by the police. Nevertheless, if much more reliable technology comes along, it would be a mistake for the Government to drop all research on it and not to keep it in reserve in case we find, to our horror, that the system, once in place, results in a great many false positives, or indeed lets people through who are not entitled to be in this country. Either way, it would be regrettable if we had no other technology to fall back on. I accept, however, that the Government have very little option, considering what the Minister told us about the compatibility that we need with European systems and the need to carry on with the fingerprint system for the time being. He mentioned that the standard residence permit, which is being developed to require the inclusion of biometrics, will apply across the European Union, and thus our system must be aligned with it. I therefore fully accept that we have no option for the time being but to go down that route. I asked the Minister about the headings, and I would be grateful for an answer.
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- Lord Bassam of BrightonLabour
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- I thought that I had addressed that point right at the beginning.
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- Lord AveburyLiberal Democrat
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- I cannot have been listening very closely. I do not remember him doing so, but I will read Hansard and see whether the explanation given by the Minister at the beginning of his remarks satisfies me. In general, it is a mistake for draftsmen to give groups of clauses headings that do not correspond to the Bill. I believe that that has happened in this case. We keep on talking about registration—a word that occurs both in the heading given to the clause and to the group—but nowhere in the Bill is registration mentioned. That is anomalous. Nevertheless, I am grateful to the Minister for his explanations to the Committee and, for the time being, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 13A:
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- Lord Bassam of BrightonLabour
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- I am grateful to the noble Lord for explaining the thinking behind his amendment. The expert evidence point is beyond my reflection, although perhaps it could be taken up through the usual channels. It would be novel; but it is not a bad idea for being novel. I always like to think that we can innovate. Whether it would be appropriate for all legislation is an open question. I can see some of the arguments that the noble Lord is making and their relevance. I shall try to explain why Clause 5(1)(b)(ii) and (iii) are integral to how the biometric immigration document works, and therefore why the Government are resisting the amendment. It is perhaps worth briefly reminding your Lordships of the rationale for the introduction of biometric immigration documents. Currently, foreign nationals in this country can proffer any of around 60 types of document as evidence of their entitlement to be here, to work or to receive benefits. It would be accepted that a system with so many forms of verification is prone to abuse, and it is very difficult for those examining documents to know whether they are genuine or a forgery, or whether the person presenting them is part of a scam. Over the coming years, therefore, we intend to phase out the use of old style immigration documents and endorsements and replace them with the biometric immigration document, which will serve as the document which authorises the holder to enter or remain in the United Kingdom. It will be the way in which the United Kingdom will comply with a forthcoming European regulation that will require the UK to issue a biometric document when leave is granted. As the Bill states, we intend that the biometric immigration document should be used for specified immigration purposes, in connection with specified immigration procedures and in specified circumstances, where a question arises about a person’s status in relation to their nationality or immigration. The types of immigration procedures and circumstances relating to nationality or immigration that the Secretary of State intends to specify will be set out in regulations and will be subject to the affirmative procedure. That seems to be the right way to proceed, because it provides for that secondary level of scrutiny and accountability. Clause 5(1)(b)(ii) makes it clear that regulations can require the use of the document in the course of an immigration-related procedure. Accepting the amendment could mean that regulations could not require the holder of the document to produce the document in connection with certain immigration procedures. That could include the procedures that apply and which he must follow when the holder arrives at a port in the United Kingdom to show an immigration officer that he is entitled to enter the United Kingdom, or when a person applies to vary their leave. To avoid any suggestion that a person cannot be required to use the document as part of an immigration procedure, Clause 5(1)(b)(ii) is essential. Amendment No. 13B would mean that regulations could not require a holder of a biometric immigration document to produce the document in specified circumstances when a question arises about their nationality or immigration status. That could mean that we would not be able to require the holder of a biometric immigration document to produce it to a prospective employer as evidence of eligibility to work, nor could regulations require the holder to produce it when accessing public services where immigration status is a relevant consideration to their entitlement. As the project is rolled out, initial immigration uses will be where a person arrives at a port in the UK to demonstrate reliably their immigration status, or where a person applies to vary their leave to remain. As I have explained already, the biometric document will be used to establish whether a person is entitled to work. I hope that covers the points that the noble Lord has made, but if not I will study carefully what he said and provide more background information, if that assists.
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- Lord AveburyLiberal Democrat
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- I am grateful to the Minister for that information. I am left with some questions, which have not been answered. The Minister gave examples to illustrate why sub-paragraphs (ii) and (iii) are necessary, but those were covered in previous discussions on the Bill. I should like to know whether any circumstances other than those connected with employment and access to benefits are being concealed from the Committee. I mentioned one in particular that the noble Lord did not cover—access to healthcare. I quoted the example that was given in yesterday’s Guardian about women being denied antenatal care because it was alleged that they were failed asylum seekers. I particularly asked the Minister for a reply to that question. Apart from employers and jobcentres, it would be very useful for the Committee to know whether PCTs, general practitioners and others delivering health services will be required to examine the BID to see whether a person is eligible for healthcare. If that is the case, what are they to do in an emergency—
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Lord JuddLabour- Quote
- I am grateful to the noble Lord for giving way. As I shall do repeatedly in our proceedings, I plug the work of the Joint Committee on Human Rights. I encourage him to read the report on the administration of asylum policy which was recently published. We spent a great deal of time and took a great deal of evidence. It is worth looking at the evidence on this matter. If he intends to pursue it, he will find some very interesting material in that report, and the evidence on which it is based.
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- Lord AveburyLiberal Democrat
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- I am very grateful to the noble Lord, Lord Judd. I hope that the Minister will also take note of what he said. Presumably, as the report was submitted on 30 March, the Select Committee will have had a reply to it by now, and the Minister ought to be able to give us an answer to the concerns that were raised by the JCHR. Therefore, I hope that before we leave this amendment the Minister will explain in precise terms how the BID is to be used to gain access to the health service and in what circumstances—
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- Lord Bassam of BrightonLabour
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- I should clarify that. At present foreign nationals may in certain circumstances be charged for using the National Health Service. I think that it is fairly and properly understood that that is the case. We would never be in a position where someone suffering from a life-threatening condition would be denied healthcare as a result of their immigration status. That would never be the case. However, we currently require some verification. I think that most people would accept that that is right.
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- Lord HyltonCrossbench
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- Before the noble Lord, Lord Avebury, finishes his reply, I must say that the point he raised about access to health and pregnancy services is extremely important. It applies particularly to those who have failed to establish an asylum application but cannot, for one reason or another, be removed from this country. If people are denied ordinary, normal healthcare, they are liable to become extremely depressed and to suffer mental health problems in addition to any destitution from which they may be suffering.
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- Lord Bassam of BrightonLabour
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- Members of the Committee can get into a lather on this issue and I do not want that to colour our deliberations. Our staff and our healthcare staff are very sensitive about this issue and respond sensitively to it. Occasionally there may be examples of bad practice but they are very few and far between. I should not like it to be generally thought that bad practice is apparent. As I say, this is a very sensitive situation, and I am sure that healthcare will be provided. The sort of circumstances to which the noble Lord, Lord Hylton, refers are precisely those where I am sure that assistance will be rendered. The issue of cost recovery would be a secondary matter. The denial of access to the health service would not be right or proper. We need to reflect very carefully on these issues. From my contact with the services, I understand that very careful consideration is given in those circumstances.
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- Lord HyltonCrossbench
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- The Minister, who is not responsible for health matters, should not rely on the goodwill of health personnel going above and beyond their statutory duties to help people in unfortunate circumstances.
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- Lord AveburyLiberal Democrat
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- I was in the middle of my speech. I am grateful to noble Lords for their interventions because they have enabled me to find the paragraph in the Select Committee report on the point that I raised and to which the noble Lord, Lord Judd, referred. It says that there are cases in which people have been denied maternity and antenatal care in hospitals. It says: “This is inconsistent with the principles of common humanity and with the UK's obligations under ECHR Articles 2, 3 and 8 … We recommend that the Government suspend all charges for antenatal, maternity and peri-natal care. We recommend that all maternity care should be free to those who have claimed asylum, including those whose claim has failed, until voluntary departure or removal from the UK”. That could not be plainer. Whatever the Minister says, it is not happening and that was the subject of an article in yesterday's Guardian. I urge the Minister to read paragraphs 140 to 143 of the Select Commission report, The Treatment of Asylum Seekers, and to tell your Lordships, if he can, whether the Government accepted that recommendation, and, if they did, what his answer is to the fact that these things are still happening in some PCTs. Women are being denied access to antenatal and maternity care, contrary to the recommendation of the JCHR. I am afraid that once people have these BIDs, every time they walk into a hospital, someone will say, “You’re not entitled to medical care because I see from your BID that you have reached the limit of your permitted leave to remain and, therefore, you are an over-stayer”.
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- Lord Bassam of BrightonLabour
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- Let me try to put this on a rational basis. That is not the purpose of the BID. The BID is designed to make clear someone's immigration status; it is not there to deny them a service. As I have already explained, it may be that in using those services they, quite properly, have to be charged for them. Then there is the issue of whether an individual is in a position to pay. No healthcare should be denied to people who are in need of it. That is the position. The BID is an immigration document that relates to their status here; to their permission to stay in this country. It has been broadly welcomed, not least by many employers who wish to be absolutely clear and certain that they are not committing offences. That is the purpose of a BID.
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- Lord AveburyLiberal Democrat
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- I remind the Minister that I said that we were perfectly happy with the remarks he made originally about the use of the BID for the purposes of access to employment and access to benefits. I am concerned about other ways in which the BID will be used and why it is not possible to specify them. If the Minister now says that there is no case in which persons will be denied access to health treatment because their BID is not current, or there is some flaw in it, let us put that in the Bill. If the only circumstances in which the BID is to be used for access to public services is when someone goes into the jobcentre and is asked to produce it to show that they are eligible for work, or in the private sector when they go to an employer and they produce a BID to show that they have the right to work in this country, then I am not arguing with the Minister. I am saying, “Fine, let’s put that on the face of the Bill. Let us say that the circumstances in which the BID has to be produced for any purpose other than immigration control is to grant access to paid employment and to grant access to benefits”. If we put that in the Bill, it would become clear that no one was going to be denied health treatment. If this is left blank, we do not know whether there are going to be continual cases like those reported in the Guardian yesterday. Apart from a person who was denied treatment, someone else was given a bill for £13,000 for maternity services that she had incurred. It is not just a question of how the Government intend the BID to be used; it is how it would actually be used on the ground that concerns the Committee at this stage.
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- Lord Bassam of BrightonLabour
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- I will try to cap this one off, because we need to move on. It is not something that we can put in the Bill, but it is the sort of issue that can be clarified in regulations. I am not going to get drawn into commenting on every individual case that noble Lords raised in the Committee proceedings; that is not the purpose of a Committee that is here to look line by line at the contents of a piece of legislation. That is pretty much where we best leave these things. On the healthcare point, just to put it on the record, the purpose of the biometric immigration document is to help identify a foreign national securely and reliably and to confirm the holder’s immigration status. That is its principal purpose. I argue that in the end it would help healthcare officials to identify whether someone is entitled to free treatment. That would be a positive. What then happens with that individual will relate to their circumstances. Not much more can be drawn from this. The purpose is rather narrower than the noble Lord has tried to suggest during this discussion; it is very specific, and that is what that part of those clauses relates to.
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- In case there is further information forthcoming on this matter, it would be interesting for me to know what happens with regard to health-visiting post-pregnancy. If a mother is depressed as a result of her situation, the health visitor is a good person to pick that up. I recognise that the Minister wants to move on, and I must read the report, which I have not yet done. Listening to the debate, it occurred to me that I would be interested to hear about that aspect, if more information is to be forthcoming.
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- Lord SelsdonConservative
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- I support the Minister on this issue. I declare an interest in that I have just tabled a Question for Written Answer to ask about the abuse of prescription drugs in this country, because I have been advised that a very high proportion of drugs that are prescribed are re-exported by foreign nationals who have no proof of identity when they collect them, often with slightly doubtful prescriptions, and they do not pay. I flag up that I have some sympathy that it would be terribly helpful to pharmacists and others if there was proof of identity for foreigners who have prescribed drugs and who should pay.
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- Lord DholakiaLiberal Democrat
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- The Minister seems to be getting unnecessarily worked up about this matter—
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- Lord Bassam of BrightonLabour
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- No, I am not getting worked up.
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- Lord DholakiaLiberal Democrat
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- Of course you are. There is a Select Committee report on this, if the Minister cares to look at that. I well understand his explanation of what the BID document is about; I have no difficulty with that. The implication of that document for people who may require certain services and the danger of that particular approach is relevant in the cases that my noble friend has identified. It is no good saying that we cannot deal with individual cases. In a previous debate, we discussed the case of a woman with a little baby who was arrested and detained and the baby did not have access to the mother’s milk. Those are the sorts of cases that hit us hard. I do not say that the Minister deliberately creates that situation. The fact that the Select Committee has identified issues of serious concern means that it is right and proper for the Minister to look at that implication in relation to this particular issue.
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- Lord Bassam of BrightonLabour
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- I do not deny that we should reflect on practice. That is why we issued guidance: so that we can impact on practice when it follows from legislation. On the point made by the noble Earl, Lord Listowel, obviously we will have to clarify some of these issues in correspondence. It is one of the points that we can pick up and I shall helpfully do that. I shall also ask officials to provide further information to the Committee about current practice in the health service on the way in which healthcare and treatment are charged. I can tell from my range of experiences that we are much more sensitive in dealing with these issues, but we should be concerned where we get examples of abuse.
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- Lord AveburyLiberal Democrat
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- I am grateful to the Minister for the information that he has given us. I make no apology for raising not just the individual cases that were referred to in yesterday’s Guardian, but the fact that they were illustrations of a much more general problem of access to health services and to PCTs in particular by women who might find that they were being denied once the BIDs became universal and had to be produced. If the gist of the Minister’s remarks is that no one is to be denied access to health services as a result of the introduction of the BIDs, I very much welcome that assurance, but it is best taken care of if he accepts my suggestion that we narrow down the circumstances in which a BID can be required to be produced to the main ones that he has mentioned: access to employment and access to benefits. I would be very happy if the Bill could be amended so that those were the only two cases in which the BID had to be compulsorily produced. It would then become clear that a person could not be denied access to maternity or ante-natal treatment and that if he or she required medication, the pharmacist would not be able to refuse it on the ground that the BID was not current.
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- Lord Bassam of BrightonLabour
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- But—
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- Lord AveburyLiberal Democrat
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- Hang on, I am just coming to the end. I am not asking the Minister for further information at this stage. I am saving him the trouble. I suggest that at some point he looks at the Select Committee report and the Government’s reply. I do not know whether the noble Lord, Lord Judd, will confirm this, but I imagine that, because the Select Committee was looking at the situation before the introduction of this Bill, it did not make any specific reference to the Bill, so the Government’s reply would not have dealt with the points that we have discussed this afternoon. I suggest that the Government look again at the Select Committee report and at their reply and think carefully, taking into account this afternoon’s discussion, about whether they are able to comply with my suggestions about how the clauses should be redrafted to make it clear that nobody is to be denied access to health treatment. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 13B not moved.]
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- moved Amendment No. 14:
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- Lord AveburyLiberal Democrat
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- Your Lordships may be pleased to know that I shall be mercifully brief. As we understand it, in due course, everyone subject to immigration control will be required to obtain the biometric document. The purpose of subsection (2)(a), which allows the Secretary of State to make regulations requiring the document to apply only to, “a specified class of persons”, is that initially it may be convenient to get only those seeking leave to remain to apply and to take later those who already have permitted leave to remain to avoid swamping the system. A phased roll-out would enable the BIA to pilot the technology and the training of users so that any problems that arise can be dealt with progressively. We have no objection to that in principle. The Explanatory Notes say that treating differently different classes of persons who are subject to immigration control for the roll-out is not discriminatory, and that any discrimination there is justified. The determining factors will be which categories present the greatest risk to immigration control and whether the technology and resources are available for particular applicants. As I see it, this would mean deploying the technology and resources preferentially to applicants who came from east Africa because the conflicts in Sudan and Somalia, and the severe human rights problems in Eritrea and Ethiopia—
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- Lord HyltonCrossbench
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- And Uganda.
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- Lord AveburyLiberal Democrat
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- And Uganda, as the noble Lord, Lord Hylton, rightly reminds me—make it likely that people from those countries will try to come here. The thinking seems to be that if every legal Somali had a BID, it would be easier to identify those who have arrived here illegally. Is that kind of discrimination justified, in the Government’s opinion? If it is, we do not want them to have the unrestricted power conferred by this paragraph to single out classes of persons as guinea pigs for the biometrics proposed in the Bill. One way in which to ensure that the queue of people lining up for the BIDs was not arranged in a discriminatory way would be to appoint an independent person, not necessarily from the Liberal Democrat Benches, to act as a monitor of the introduction of biometrics and to report to Parliament from time to time on the compliance with discrimination legislation, the Data Protection Act and any other matters to which Clauses 5 to 15 refer. I do not expect the Minister to give me an off-the-cuff reply to that suggestion, but I would like him to mull it over and to say in due course whether he thinks that it is possible. I am sure that the whole of the Grand Committee would want to avoid any suspicion of discrimination in the way in which the roll-out is managed—suspicion that would lessen confidence in the whole procedure. Therefore, in due course, I will invite the Minister to come back with an answer to my, I hope modest, proposal that we have an independent monitor of the roll-out and other matters in Clause 5.
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- Lord HyltonCrossbench
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- Will the Minister say whether it is envisaged that the roll-out will be by geographical area, which I assume would be reasonably non-discriminatory?
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- Lord SelsdonConservative
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- Perhaps the Minister could help me. I received a questionnaire the other day, which asked me to tick which ethnic box I was in: was I white Caribbean, or black Caribbean, and so on. Is there now a definition of origin that could be acceptable to everyone?
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- Lord AveburyLiberal Democrat
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- It is the census.
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- Lord SelsdonConservative
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- Is it the census? Would that apply internationally?
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- Lord DholakiaLiberal Democrat
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- My noble friend is right; it is for the Minister to answer, but I think we are talking about the categories that have been determined under the census. I often get in as much confusion as the noble Lord, but that is a secondary point to our debate. I am glad that the noble Lord, Lord Judd, was able to highlight the concern of the Joint Committee on Human Rights. He rightly mentioned the impact and the racial categorisations that are likely to emerge from this clause. Let me spell it out. The Joint Committee says that, “to be lawful it will be vital that race plays no part in the process used by the government to decide the order in which it phases implementation of the biometric immigration document”. This will require very careful scrutiny when the time comes to implement the scheme, and it draws our attention to that. It is necessary because the Government have often failed to consult the very body that they set up to look at issues of this nature, such as racial profiling and the discriminatory impact on particular groups of people in the community; I refer to the Commission for Racial Equality. Let me bring this point out. When we talked recently about the position of overseas doctors who are no longer qualified to stay in this country and who are to be sent back home, I raised with the Department of Health whether it had consulted the Commission for Racial Equality on the impact of its decision on people coming to take jobs in this country. There had been no such consultation whatever. The commission informed me that that was basically unacceptable, because it should have been consulted. There is another issue. The Home Office is well aware that it increased the period of qualification in this country for registration from four to five years. I got in touch with the Commission for Racial Equality, and it had no knowledge of that. The commission has a duty to promote equality, and it has established the need for every public body, including government departments, to work out the racial impact of its policies. Has the Commission for Racial Equality been consulted on this? Has its opinion been obtained? If not, why not? Would it not be wise for Ministers to say that if that has not taken place, they will consult the commission, and come back on it? I have no doubt that the Commission for Racial Equality will support, more or less, everything that the Joint Committee has said.
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- Lord Bassam of BrightonLabour
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- I am grateful to noble Lords for their contributions to a lively and stimulating debate. I well understand the concerns that have been expressed. Naturally, the Government have carefully studied the JCHR report on the Bill. I offer the assurance that the Government are clear that neither the biometric immigration document nor its implementation should give rise to de facto racial profiling. An amendment was made to the Bill in another place that there would be no requirement for the biometric immigration document to be carried at all times. On implementation, Clause 5(2)(a) is designed to enable the biometric immigration document to be rolled out incrementally. If we were to accept Amendment No. 14, the Government would have to introduce the biometric immigration document to all third country nationals more or less simultaneously. We do not think that would be very workable. The purpose of an incremental roll-out is to avoid having a very large number of individuals applying for a biometric immigration document within a specific time frame. Perhaps I can outline briefly how we intend to conduct that incremental roll-out. In order to ensure that these documents have the optimum chance of success and to best help those subject to their registration, I am sure noble Lords will accept that we need to manage the roll-out with some care. It is best achieved by a gradual and systematic implementation in accordance with a set of rational criteria. First off, it would be best to include students from outside the EU, those seeking to settle in the United Kingdom having completed a five-year qualifying period, those applying to extend their work permits, and those seeking leave to remain on the basis of marriage to a UK citizen. In addition, it is important to appreciate that rolling out the biometric immigration document incrementally should minimise the burden placed on organisations that may be required to use it. We do not wish to jeopardise the success of the document when its value to border control and employers alike is very clear. It is therefore our intention from 2008 to roll out progressively biometric documents to qualifying foreign nationals subject to immigration control who are already in the United Kingdom and reapplying to stay here. This will allow us to trial the biometric recording and card production processes. These will need to be thoroughly tested to ensure that a robust and reliable system is in place, and it is then our ambition to cover by 2011 all new in-country applications for permission to stay in the United Kingdom. I can assure noble Lords that the roll-out will be undertaken on a rational basis in accordance with existing discrimination laws and the European Convention on Human Rights. To do otherwise would be unlawful and we would be rightly subject to challenge. I was interested in the suggestion of the noble Lord, Lord Avebury, that we should have an independent monitor. I am sorry that he did not volunteer a name from the Liberal Democrat Benches because they seem to be rich in individuals who like undertaking that sort of work, and we greatly respect the political tradition of which that is a part. There is to be a chief inspector of the BIA, which will be created by this Bill. The responsibilities of the chief inspector will cover the need to monitor and report on several matters, including compliance with the law on discrimination. Rather than cause confusion by creating yet another position to undertake matters of compliance in that regard, it is probably best to leave that provision as it is. The noble Lord, Lord Dholakia, challenged me to say whether we had consulted with the CRE. I would be extremely surprised if we have not done so, but I will check on this and ensure that the organisation or its successor body, the Equality Commission, is fully apprised of these parts of the legislation.
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- Lord AveburyLiberal Democrat
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- I am both surprised and gratified by what the Minister has said about the categories that are going to be treated preferentially in the roll-out because it does not conform with what is set out in the Explanatory Notes to the Bill. According to those notes, the determining factors will be those categories which present the greatest risk to immigration control, as well as whether the technology and resources are available for particular applicants. The categories the noble Lord has just mentioned—five-year residency, work permit renewals and spouses—are obviously not those representing the greatest risk to immigration control. This may indicate that perhaps there has been a reconsideration since the Explanatory Notes were written, which is all to the good. However, where the Government propose to depart substantially from their previous commitments—I believe that one can take the Explanatory Notes as being something of a commitment—it would be useful if they would keep those immediately concerned with these matters informed by saying that they no longer adhere to this text, but have adopted different procedures. I do not expect an answer from the Minister to my next point, but perhaps we can come back to it later. I am satisfied to a large extent with his undertaking that the chief inspector of the BIA will monitor the roll-out and ensure not only that it conforms with anti-discrimination legislation but also with the Data Protection Act. This will be fully covered in the remit of the chief inspector, and he or she will be able to report to Parliament from time to time on the management of the roll-out. Subject to those assurances, which I do not expect the Minister to give off the cuff in conclusion to this debate, I think that we have had some reasonably satisfactory answers.
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- Lord HyltonCrossbench
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- It occurs to me that there may already be in this country quite large numbers of non-nationals who have national insurance numbers, who are registered with GPs, and who may already pay PAYE. Such people are a low priority for BID documentation. If they could be held back, perhaps the rest of the process would be smoother. Again, I do not expect the Minister to answer that now, but will he write to me?
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- Lord JuddLabour
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- I welcome the Minister’s response, and have several questions. First, was racial profiling seriously considered? Even if racial profiling was not intended, could it inadvertently come about? Moreover, does the Minister accept that, even if it is not compulsory to carry the document, the fact that it exists and can be demanded when services are sought could lead to such racial profiling among ethnic minorities’ full British citizens and therefore to indiscriminate and disproportionate pressure on them in yet another sphere? Finally, will the Minister assure the Grand Committee that the Government are convinced—and tell us why they are convinced—that whatever they do will address the point that I underlined, and which was in the Joint Committee’s report, that the registration scheme may be difficult, if not impossible, to reconcile with the respect for private life as spelled out in Article 8 of the European convention?
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- Lord Bassam of BrightonLabour
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- The noble Lord, Lord Hylton—or it might have been the noble Lord, Lord Avebury—asked about data protection. Under Clause 47(2)(h), the chief inspector of the Border and Immigration Agency must also report on the provision of information. I think that that covers the point. I should say to the noble Lord, Lord Judd, that the Government have put in place many very positive pieces of legislation to tackle discrimination. I take personal pride in having worked with the noble Lord, Lord Dholakia, and putting in place legislation, in 2000 or 2001, that tackled indirect discrimination. The inadvertent discrimination to which the noble Lord refers is probably covered by that legislation. I certainly hope that it is, although that is not to say that there is no discrimination from time to time because it has been legislated against. It certainly is not our intention that that should be the case. No doubt that is an issue on which the chief inspector will wish to focus some attention, not least because complaints have to be looked at. The noble Lord asks again whether the existence of a BID means that black and ethnic minorities will be subject to de facto racial profiling. No, these provisions are about ensuring that individuals produce a reliable, secure document, as I have explained on many occasions in the course of our discussions, so that they can establish their immigration status. In the illegal-working context, the Secretary of State will issue a code to assist employers to conduct document checks so that there is a proper verification process, without recourse to any form of unlawful discrimination where public officials require the document. They, as I have already said, are subject to race relations legislation and it would not be lawful to require a BID to be produced based on appearance. That is clear and relates precisely to what I said at the outset.
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- Lord AveburyLiberal Democrat
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- I wonder what the employer’s code of conduct will say about a job applicant who is clearly from a racial minority—let us say he appears to be Somali. An employer knows he is under an obligation not to employ anyone who is here illegally. Is there not a temptation for him to safeguard his own back by saying to the applicant, “Have you got a BID?”, or, “What other evidence have you got to satisfy me that I am legally empowered to employ you?”?
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- Lord Bassam of BrightonLabour
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- I would have thought that would be a very sensible course of action for an employer, once we have introduced the BID. It is not about discrimination, but that is precisely the purpose of creating the BID.
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- Lord AveburyLiberal Democrat
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- Is that not exactly the point that was raised by the noble Lord, Lord Judd, that everyone applying for a job who looks Somali will be asked to produce a BID, whether he was born in this country or not?
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- Lord Bassam of BrightonLabour
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- Not necessarily. I cannot see that that will always be the case. The presence of a verifiable form of documentation will be of great assistance in those circumstances.
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- Lord JuddLabour
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- I understand the commitment of my noble friend on these issues. He does not have to convince me. It is important to recognise that it is precisely through these kinds of measures, with their unintended consequences, that resentment is built up among the ethnic minority population in this country. For all the reasons, of which we have been all too well aware, that have been given in the past week, that is a dangerous thing to do as well as being wrong. If the Government, commendably, are emphasising the importance of the identity of citizenship, the confidence of citizenship, the importance of becoming a full UK citizen and so on, and the experience of a significant section of the population is that they are second-class citizens because they can be picked on and are being picked on more than white members of the community, that will cause resentment and will certainly lead to a feeling of profound hypocrisy about the whole process of government. If his department, of all departments, is talking about the importance of security, which in my view is related very strongly to the idea of full citizenship and the identity with citizenship, that point cannot be rationalised away. The points made by the Joint Committee are very real possibilities. We need to hear evidence why the Government believe that those possibilities will not become probabilities.
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- Lord Bassam of BrightonLabour
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- Is my noble friend saying that employers should not require any form of documentation before considering whether to employ someone? Is he saying that person X turns up, meets an employer and is given a job without any form of check on his status? I find that very surprising. Currently, employers would probably require to see a birth certificate or a passport.
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- Lord JuddLabour
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- I would argue that the employer should require exactly the same information as he requires from anybody else. There should be no likelihood that he will ask for special information because of the colour of a person’s skin.
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- Lord Bassam of BrightonLabour
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- My son started part-time work a year and a half or so ago. His prospective employer asked him to produce his national insurance number and some verification of his age, date of birth and residence. There is a degree of equality of treatment here in any event. I do not think that the request to have access to the BID to verify that person’s immigration status is any more discriminatory, or likely to be. These things are very simple. They need to be in place so that employers can be reassured and protected.
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- Lord AveburyLiberal Democrat
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- Before the noble Lord, Lord Judd, finishes, the Minister has told us that normally a national insurance certificate would cover a person’s entitlement to work. If a person who has previously been in employment and is transferring to another job can satisfy the employer that he has a national insurance number, that should be equally valid, whatever his racial or national origin. The existence of a national insurance number should prevent the employer demanding any other proof of his legal presence in the UK. I take it that it is only when a person goes to his first job in the UK, for example, having graduated from a university or left school, that he may not necessarily have a national insurance number. It is in those cases only that any doubt would arise as to his legitimacy as a person of residence in the UK and able to take employment. Perhaps the number of cases will be pretty small if the national insurance document is the primary evidence of ability to work.
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- I have to say to my noble friend—we use these expressions “noble friend”, but we are actually personal friends and it makes it all the more difficult because I know that we share many of the same convictions and objectives—that I think he has done his best on a difficult wicket. He has said all that the Government can say about the matter. That only underlines my anxieties, which were certainly accentuated by my participation in the discussions in the Joint Committee. I must say that although, for obvious reasons, I am at this stage going to withdraw the amendment, it may be necessary to come back to it on Report. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 14A:
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- Baroness Anelay of St JohnsConservative
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- I rise to speak to a rather different aspect of this matter. The noble Lord, Lord Avebury, referred to the need for some form of guidance on what may comprise non-biometric information, and he seeks from the Government a list so that we can flesh out how they anticipate it will be developed. I have just advised the Bill team that it might be helpful to the Committee if I speak to Amendment No. 26 and group it with this amendment. I had intended that Amendment No. 26 would be taken separately, but given the way in which business is flowing today, that would not be helpful because it could well not be debated until another day. I hope that the noble Lord, Lord Avebury, has had an opportunity to find Amendment No. 26 in the list. I apologise for not having given advance notice that I intended to group Amendment No. 26 here, but it just occurred to me while he was speaking. The noble Lord made it clear when speaking to his amendment that it would be helpful if I were to refer to Amendment No. 26 at this point. The intention is to ask the Government whether any of the non-biometric information could comprise sensitive personal data as defined in the Data Protection Act. The Minister will know from our discussions on other Bills, including those on the Identity Cards Act last year, that we have always been keen to discover which personal data will be registered. Of course, by its nature any registration of biometrics is going to register personal information—it cannot do anything else—but we want to be sure that it will not include any sensitive personal data as defined in the Data Protection Act. If the Minister can give me an assurance in that regard, I will not need to pursue the matter any further.
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- Amendment No. 14A would limit the non-biometric information recorded on or in the biometric immigration document. Limiting the information which can be recorded on the document in this way would mean that the United Kingdom could not use the biometric immigration document provisions to comply with the requirements of a forthcoming European Commission regulation. I think that the noble Lord, Lord Avebury, referred to that. That regulation will require the United Kingdom and other member states to include certain non-biometric information on a biometric document when a person is allowed to stay in the United Kingdom, other than that listed in the amendment. At present, the information recorded on existing non-biometric vignette-type residence permits is set out in an EC regulation which we must comply with. The vignettes already include information which is not on the list in the proposed amendment including nationality and sex of the holder, country issuing the document, details of when the document was issued and when it expires, and various security features. In the near future, a draft EC regulation will also require the documents which we issue to authorise a person to stay in the United Kingdom to contain biometric information including fingerprints and a photograph, and some other additional non-biometric features such as the International Civil Aviation Organisation symbol for a machine readable document with a microchip. Discussions as to what non-biometric information will be required are continuing at EU level. Clause 5(2)(d) allows us the flexibility to take account of discussions in the European Union on what non-biometric information should be included on the forthcoming biometric residence permit. It is almost certain that the draft EC regulation will require other information which is not included in the proposed amendments. We cannot agree to the amendment because it would take away the flexibility to make regulations which ensure that we comply with requirements of the draft EC regulation. The noble Baroness drew Amendment No. 26 into the debate, for which I am grateful. This amendment would undermine the operation of the biometric registration provisions for many categories of those who apply for leave, and would prevent us using the biometric immigration document to comply with the regulation to which I referred. Sensitive personal data include information about a person’s nationality, their religious and political beliefs, sexuality or criminal convictions. When a person applies for leave to remain as, for example, a refugee, a minister of religion, a spouse or a civil partner, they already provide “sensitive” personal data as an essential part of their application. The Borders and Immigration Agency is well used to processing this type of information fully in accordance with the Data Protection Act and Human Rights Act. In time, a person who applies for leave to remain will have to apply at the same time for a biometric immigration document. The document will be the way in which their leave is granted. The applicant will have to fill in a combined application form including details about their leave application. The amendment would mean that the combined application form could not contain any reference to the leave application if it was in a category which necessarily disclosed the person’s sensitive information, for example an application made on the basis of marriage. This would prevent BIDs being issued to individuals in these categories, even though EC law will require us to issue them with a biometric card wherever we grant them leave. The amendment would prevent the Secretary of State asking the person for details of their previous criminal convictions as part of a combined application for leave to remain and for a biometric immigration document. That would prevent the Secretary of State from assessing whether it was appropriate to grant leave, and so issue the BID, in the light of the applicant’s previous convictions. This could potentially have very serious implications for public safety, as I am sure the noble Baroness understands. I reassure her that the Data Protection Act 1998 and Article 8 of the ECHR provide safeguards for those who are required to provide sensitive personal information. For that reason we argue that the amendments are unnecessary.
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- Baroness Anelay of St JohnsConservative
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- Before the noble Lord, Lord Avebury, speaks to his amendment, I should thank the Minister for that answer. That might seem strange because he rejects my amendment, but he has very helpfully exposed some of the contradictions that would flow from it. He is right that I am not seeking to undermine the security that the system is supposed to bring about, and, having listened to his answer, I certainly undertake not to return to the matter when it reappears either in the list of amendments or on Report.
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- Lord AveburyLiberal Democrat
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- The Minister’s response to the amendments, which would limit the scope of any of the paragraphs in Clause 5, is very reasonable. On this occasion I entirely accept that we need to make provision for compliance with the draft EC regulation and for the rules of the ICO, which requires its symbol to be displayed on these documents. On the other hand, we have been trying all along to limit the total freedom granted to the Secretary of State in every clause and which goes far beyond the limited requirements that the Minister outlined in answer to our amendments. I suggest again that we limit the clause to matters that are relevant to a person’s immigration status, but that may be too limited. Perhaps paragraph (d) should say instead that the Secretary of State could make provision for biometric immigration documents to include any non-biometric information that may be specified in an EC regulation or in any other international agreement to which the United Kingdom is party. That would mean that the Secretary of State would be able to do all the things that the Minister has suggested are necessary and on which we agree, but it would not give him the blank cheque to add any other information whatever to the non-biometric information that must be included in the BID. I am not suggesting that the Minister gives me an answer off the cuff, but, once again, as with so many of these matters, I suggest that he thinks about what I have said and tells us later, preferably in a letter, whether the Government can comply with our suggestion.
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- Lord Bassam of BrightonLabour
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- It is worth reminding the Committee that the regulation-making power is the affirmative procedure. Noble Lords will have the opportunity to discuss this further then. I will not give the commitment that the noble Lord seeks, but I will read very carefully what he has said, and no doubt we will reflect on it. He will get another chance to look at this when the regulation is laid for consideration. The affirmative procedure is very powerful.
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- Lord AveburyLiberal Democrat
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- By that time, however, it will be too late. If the regulation does not comply with my suggestion, we cannot discuss it further, and I will have to take it or leave it. I therefore ask the Minister to think about my proposal that we give the Secretary of State the ability to add to the BID any non-biometric information that is required by some EC regulation or by any other international agreement to which the UK is party. If he says that that is not enough because the Secretary of State may think of some non-biometric information some years down the line which he may want to add, and that my suggestion will prevent him from doing that, I would say that that would be a good thing, because any such change of policy would have to be fairly remarkable to give rise to such a requirement, and it would be right for the Secretary of State to return to Parliament on that occasion to ask for fresh primary legislation. I certainly hope that before we leave Grand Committee we will have some sort of an answer from the Minister, so that we can consider what our attitude will be when the matter comes up again on Report. Indeed, if they accept our suggestion, we will not have to raise the matter again. Meanwhile, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Anelay of St JohnsConservative
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- moved Amendment No. 15:
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- Lord AveburyLiberal Democrat
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- I am sure that we all have a difficulty with the point raised in Amendment No. 15, which relates to the paragraph that allows the BID to be combined with another document. That is also the subject of a later amendment in the Minister’s name. I have been curious all along to know what these other documents could possibly be, because no clue is given in the Explanatory Notes. Again, this is not the first time during the proceedings that I have been rather critical of the Explanatory Notes, which do not come up to the usual standard. However, the difficulties we have had with the notes will be covered in one of the letters the Minister has undertaken to write during the course of the Grand Committee.
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- Lord HyltonCrossbench
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- I raise a point about Amendment No. 16 which I hope that the noble Baroness, Lady Anelay, has not already covered while I was briefly out of the room. Paragraph (k) refers to the Secretary of State requiring the “surrender of other documents”. “Other documents” is not explained, even in the Explanatory Notes. Does it include passports held by non-nationals which are still valid? If they are included and the Secretary of State acts on this, people could be left in a position of quasi-statelessness in this country, which would prevent them travelling to other countries.
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- Baroness Anelay of St JohnsConservative
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- It might be helpful if I comment on that. The noble Lord, Lord Hylton, is right to raise that question. He is getting at some of the issues that I tried to raise. I was trying to find out what other documents the Government might require to be surrendered. The noble Lord will be aware that during the passage of the Identity Cards Act we discussed at what time a passport would have to be surrendered in order for someone to be forced to have an ID card. What about the designation of other documents such as driving licences? What would have to be surrendered? I am grateful to the noble Lord, Lord Hylton, for raising that point.
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- Lord Bassam of BrightonLabour
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- I am grateful to the noble Baroness for tabling her amendments. I am grateful, too, to the noble Lord, Lord Avebury, for spelling out his concerns. Amendment No. 15 would fundamentally undermine one of the aims of the biometric registration scheme. We want to ensure that foreign nationals subject to immigration control and legally in the United Kingdom are issued with a biometric immigration document. These documents will act also as an identity card once they have been designated under the Identity Cards Act. If Clause 5(2)(e) were removed, the biometric immigration document could not be combined with an ID card. Therefore, when the Secretary of State decides to designate biometric immigration documents for the purposes of registration under the Identity Cards Act 2006, foreign nationals affected would have to carry two cards.
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- Lord AveburyLiberal Democrat
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- Before the Minister leaves the point, perhaps I may say what mystified me. If one can designate with the ID card, there is no question of it being combined with another document, unless the Minister is saying that there is a blank identity card and the BID is merged into it. Why do the Government need to do this? Can they not simply designate the existing BID as an identity card under the Identity Cards Act?
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- Lord Bassam of BrightonLabour
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- It will not be the existing BID that is designated as a document; it will be the second generation that becomes ID cards. I turn to Amendment No. 16. The purpose of Clause 5(2)(k) is to enable the Border and Immigration Agency to require the surrender of old, less secure documents which currently serve as evidence of immigration status, such as immigration status letters—which can be forged—or vignettes. Our intention is to replace them with the secure biometric immigration document. Bleeding out insecure documents is a key contributor to tackling illegal working. Our intention is significantly to reduce the number of acceptable immigration documents issued by the Border and Immigration Agency to the biometric-enabled visa and the biometric immigration document. Representatives from the NCP stated in the public evidence sessions in another place that good employers want us to reduce the number of different documents issued to foreign nationals granted leave in the United Kingdom. We intend to reduce these to two types of secure document: the biometric-enabled visa and a biometric immigration document. It has always been our intention only to require the surrender of immigration- related documents, which would include vignettes granting leave. We have therefore tabled Amendment No. 15A to make this clear in the Bill. Noble Lords will know that we have tabled Amendments Nos. 16A, 16B, and 19A, to which the noble Baroness, Lady Anelay, referred, to address some of the concerns emanating from the Delegated Powers and Regulatory Reform Committee in respect of insufficient detail about the biometric registration scheme in the Bill. The noble Baroness has very honourably consulted a colleague in another place, Damian Green, and I fully understand why she cannot give a firmer commitment on the points covered by the amendments today. I respect her need to reflect further on their content. The amendments set out in the Bill more detail about when the Secretary of State may cancel a biometric immigration document and when a holder may be required to notify the Secretary of State. However, they also reflect the fact that circumstances change and, for this reason, it is necessary to allow for additional circumstances to be specified in regulations, which will of course be subject to the affirmative procedure. The proposed changes are designed to follow more closely the comparable provisions in the Identity Cards Act. There are certain differences because of the different immigration functions of the biometric immigration document. There will no longer be a power to suspend a biometric immigration document, because it is no longer needed. If the Secretary of State considers that she may have to cancel a biometric immigration document, she may require it to be surrendered to enable her to investigate further before making a decision to cancel it. This approach reflects similar practices for other types of secure document, including passports.
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- Lord AveburyLiberal Democrat
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- What happens if someone does not notice that changes to the notification requirements have been advertised, say, on television? What would be the penalty if someone missed the announcement, as people do? Everybody knows that whenever the Government make an announcement, thousands of people, completely inadvertently, will not read it in the Times or see it on the BBC News and do not look at the web. A great many people never look at the news. What happens when the person who is required to notify the Secretary of State under some change specified in the Bill fails to do so? What are the penalties? Will it be a defence in any proceedings against them for failure to do so that they were unaware of the change that had been made?
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- Lord Bassam of BrightonLabour
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- There are a couple of points there. We would be in a position to communicate directly with a BID holder. When the BID is issued, we will also provide details about notification procedures. Obviously, the noble Lord is right that there will always be people who miss particular points, but we will do all that we can to ensure that they are as few as possible.
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- Lord DholakiaLiberal Democrat
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- The Minister was helpful, because in the earlier question on Clause 5(2)(e) my noble friend raised a specific matter and the Minister did not offer the necessary clarification. He said that he would certainly write to us on this. Will he take into account the comment made in the other place by Mr Byrne in response to a question put by Damien Green? He said: “we have been clear in our intention to designate the cards as ID cards as soon as the national identity register comes online. That is important, because doing so will provide migrants who are here legitimately with the additional protections on which Parliament rightly insisted in the Identity Cards Act 2006. The second problem is that if we accepted the amendment, migrants in this country with biometric immigration documents would have several bits of identity. That is problematic, because the whole thrust of our policy is to bleed out those documents”—[Official Report, Commons, UK Borders Bill Committee, 8/3/07; cols. 240-41]. That is contrary to what the Minister was saying. Will he look at that in responding to the question of my noble friend Lord Avebury? Perhaps he could come back to us after that.
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- Lord Bassam of BrightonLabour
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- I think that is consistent with what I said. We want to reduce the number of documents that people have to hold. I cannot see the inconsistency here. We have a careful process for ensuring that a BID holder can have access at a later stage to a proper and full identity card. To finish one of the points about notification requirements, if someone has missed the announcement of a change in circumstances, we will be sensitive and will think very carefully before imposing any sanction. We have to operate the system reasonably.
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- Lord AveburyLiberal Democrat
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- I am sorry to repeat myself, but I should like to clarify the point at issue on the designation of BIDs as identity cards. Mr Byrne, the Minister in another place, told the Public Bill Committee that the BID would be designated under the Identity Cards Act as an identity card, whereas the Bill says that the Government want to merge the BID into another document. I asked the Minister whether that meant that there would be a blank identity card into which the BID would be merged. That was my hypothetical explanation for that provision. The Minister did not answer that question. My noble friend tried to repeat the question by quoting Mr Byrne. How does the Minister reconcile what Mr Byrne said in the Public Bill Committee with what the Bill says about merging the BID with another document? He need answer not now but some time.
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- Lord Bassam of BrightonLabour
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- Sorry. I am very keen to be as helpful as I can. I do not think that what I said was inconsistent with the explanation that the Minister in another place gave. The noble Lord, Lord Avebury, is close, but has not quite understood the position, which I will set out clearly, because I do not want there to be confusion on this.
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- Lord HyltonCrossbench
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- In contrast with the weighty issues that have just been discussed, I would like to raise a low-key drafting point about government Amendment No. 16B, which says, no fewer than 12 times, “if the Secretary of State thinks”. I expect that the Minister is well aware that this expression has been severely criticised on other Bills. The wording would be much improved if it said, “if the Secretary of State is satisfied”. While that is being considered, could the Government also consider whether it is necessary to repeat the same phrase 12 times?
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- Lord Bassam of BrightonLabour
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- The explanation is that plain English has been used to draft that clause rather than history. It is designed to be very clear.
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- Lord HyltonCrossbench
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- The point is that it is not satisfactory. Parliament is not satisfied with thinking, which is subjective, whereas “is satisfied” means that the Minister has considered the matter properly, has taken everything into consideration, and has come to a conclusion.
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- Lord Bassam of BrightonLabour
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- I would argue that “is satisfied” is also subjective, but there we go. This is a debate for another time, and one that should probably come under the general heading, “Linguistics”.
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- Baroness Anelay of St JohnsConservative
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- This one always comes around. I remember a brief that I had five years ago. It was one of those occasions on which the Leader gives you the good news that you have a fascinating new brief—home affairs. The other news is that the first Bill is in 10 days and it is an immigration Bill. That was the 2002 Bill. I admit to the noble Lord, Lord Hylton, that when I saw similar government drafting in that Bill, I tabled a series of amendments on exactly the same lines as his. I was not trying to be helpful at all to the Government. I did not see this at all as a matter of linguistics or drafting, but as a way of trying to ensure that there was a much tighter way of looking at the whole procedure and holding the Secretary of State to account. It is often very healthy to ensure that, if the Secretary of State takes powers to himself, it is a matter not of what he thinks but of being satisfied so that he provides evidence. I know that we have had this argument for the past five years and that we will keep returning to it. I am sure that the Government, like all Governments, want drafting that removes so far as possible any possible element of legal challenge to the action taken by the Secretary of State. I am grateful to all noble Lords who have taken part in the debate, but I am particularly grateful to the noble Lords, Lord Avebury and Lord Dholakia, who have tried to assist the Government to reconcile two statements. I am glad that they did, because that was the absolute intention behind my Amendment No. 15. I became extremely confused when the Minister talked about the way in which the identity card would supersede the BID, because I am not sure that this is a matter of language. It could be a substantive difference in process, and I do not think that the Government mean it to be. My understanding is that combining documents means that the two documents are different and are put together. The Minister explained initially that there would be one document—the BID—which would be discarded later and superseded. If one document is superseded, the first is discarded. New technology comes in and we have the biometric immigration document. However, that is not what the Bill seems to provide. We need to look again at that, although I will not rehearse the arguments that we have already had. There is certainly confusion in my mind. It may simply be that there is misunderstanding on this side of the Committee, but I suspect that there is not. I suspect that we may simply need to consider better drafting, or perhaps the Government will pursue a process of rolling out ID cards to which some may object. The noble Lord, Lord Avebury, and I may find ourselves on different sides of the argument at that stage. I may support the Government in the way in which they want to roll out identity documents for those who are subject to immigration control. Whatever our view, however, we need to know what the process is and whether it will be effective and proportionate. I am grateful to the Minister. As I said, I will consider the Government’s responses to my Amendments Nos. 16 and 17. Having heard the Minister today, I think that we will be satisfied, although I cannot give that assurance. I am sure that I will have to come back on Report on Amendment No. 15, but I look forward to receiving any further information between now and then. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 15A:
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- Baroness Anelay of St JohnsConservative
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- It is most unusual to say this at this point, but it may be helpful. As a result of having heard the Minister address questions that I was going to raise under my Amendments Nos. 18 and 19, I give notice that I will not move them.
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- Lord Bassam of BrightonLabour
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- I am most grateful to the noble Baroness for that. There are other amendments in the group, and I will address those as we progress.
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- Lord AveburyLiberal Democrat
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- I am not altogether sure that I understood what the Minister said. He repeated what we have already been told by the noble and learned Baroness, Lady Scotland, in her letter, when she explained that this matter was to do with the point raised by the Delegated Powers and Regulatory Reform Committee and the purpose was to follow the Identity Cards Act more closely. Removing these two paragraphs means, as the Minister has explained, that the code to which authorised persons must have regard has disappeared. The Minister simply told your Lordships that this would be replaced by practice guidance. What the code might have contained and what the practice guidance might contain could have been identical. Neither of them would necessarily have referred to the PACE codes of practice. The replacement of the code by practice guidance does not have any bearing on the explanation which the Minister, and the noble and learned Baroness, Lady Scotland, gave us in the letter. I am left slightly uncertain as to why simply replacing the code by practice guidance has the effect which the Minister explained in the letter and again this afternoon.
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- Lord Bassam of BrightonLabour
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- It is consistent with the position that we explained in another place. We are trying to ensure that practice is advised by guidance and to avoid a situation in which people feel potentially tarnished by association with the PACE codes in any way, shape or form. That is the simple explanation. On Question, amendment agreed to.
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The Deputy Chairman of Committees (Viscount Allenby of Megiddo)Crossbench- Quote
- Before calling Amendment No. 16, I advise the Committee that, if this amendment were to be agreed to, I would not be able to call Amendment No. 16A because of pre-emption. [Amendment No. 16 not moved.]
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- Lord Bassam of BrightonLabour
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- moved Amendments Nos. 16A and 16B:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 17A:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 19A:
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 20A:
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- Lord HyltonCrossbench
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- Once again, the noble Lord, Lord Avebury, has, with the benefit of his encyclopaedic knowledge, put his finger on some important matters. As a relative beginner in these difficult areas, I would only ask why, if a non-national already has a biometric visa and is coming to this country only for a short period—however “short” may be defined—he should need a BID as well.
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- Lord Bassam of BrightonLabour
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- We think that the amendment is misconceived because UKvisas will not issue biometric immigration documents. Although UKvisas issues biometric visas, they are issued at posts abroad under existing legislation. Biometric immigration documents, on the other hand, will be issued in the United Kingdom, initially to foreign nationals, those subject to immigration control who have made a successful in-country application to the Border and Immigration Agency. However, in future, that may include other foreign nationals who are subject to immigration control. Fees for in-country services are set by the Secretary of State with the consent of the Treasury, and the regulations prescribing those fees are laid before Parliament and are subject to the negative resolution procedure. We consider that that offers Parliament sufficient scrutiny and oversight of the costs of biometric immigration documents and the fees that may be charged without the need for a code of practice. So, we anticipate that the majority of applications for the initial allocation of biometric immigration documents will be processed alongside immigration applications and completed within existing published service levels. Obviously, some cases may take longer for a variety of reasons, and that will include cases in which we have to make further inquiries. We do not consider it necessary to have a code of practice setting service levels and maximum costs for issuing biometric documents, given the wide-ranging and complex nature of the applications we process. As I have made plain, those making an application will be charged and that will be included in the immigration application charge fee. I cannot provide the noble Lords with precise details, but I am happy to write in response to the general fall-out of questions put to me today to which I have not been able to provide direct answers. The noble Lord, Lord Avebury, asked about time periods. No decision has been made to reduce the length of time beyond which a person is required to have a BID from six months to three, as the noble Lord suggested. The noble Lord, Lord Hylton, asked about short-term visitors. Visa nationals coming for a short visit—currently up to six months—would not require a BID; the visa document itself will suffice. On the cost of biometric immigration documents, we are developing a cost base for these and a charging model to recover them. We are determined to keep the cost of BIDs as low as possible, but it would not be appropriate to commit to an artificial limit—certainly not at this stage. As I have explained, costs and fees will be subject to parliamentary scrutiny.
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- Lord DholakiaLiberal Democrat
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- Will the Minister look seriously at the position of asylum seekers, whom we expect will be those carrying ID cards? We have been approached by representatives of the Refugee Council about the impact of this. Does the Minister consider it would be appropriate to provide an exemption from fees for asylum seekers, bearing in mind that this group is one of the poorest and most vulnerable in our society? Asylum seekers are unable to work and receive less financial support than British citizens. This should be regarded as a question of humanitarian protection, and asylum seekers should be exempted from the charges on a discretionary basis. I hope that the Minister will be able to consider this. It would be helpful if a response were made before the Report stage so that we can narrow any future amendment on this subject.
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- Lord AveburyLiberal Democrat
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- Could the Minister deal with my question on whether the basis on which the fees are charged will be on the costs incurred by the providers or whether, as is the case for certain other fees recently, the charges will be higher than the costs? I refer to the fee to apply for indefinite leave to remain which was raised recently from £350 to £750. I ask the question because UK universities are already anxious about competition from abroad diminishing the supply of foreign students entering our universities and thus having a severe impact on their finances. If applicants to higher education courses are suddenly faced with a large additional bill for BIDs, that could have a serious effect on university intake. Before the Government reach any conclusion on these issues, I would ask them to hold discussions with the universities, and I would be grateful for an assurance from the Minister that that will be so. Further, since he said that no decision has been made on whether to reduce the period from six months to three, I extend that request also to representatives of the tourist industry. If you start charging people for BIDs when they are coming in only for a short holiday, I am sorry to say that the impact on our tourist industry could be very severe. It would be outrageous if the Government were to undertake such a step without proper consultation with the interests concerned. I hope that the noble Lord can give me assurances, on both the universities and the representatives of the tourist industry, and that they will hold those discussions before any final decisions are made on these matters.
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- Lord Bassam of BrightonLabour
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- I thought that I had dealt with the short-term visitor issue, which the noble Lord, Lord Hylton, raised. For the avoidance of doubt, visa nationals coming for a short visit, currently up to six months, will not require a BID as the visa itself will suffice. That is a six-month period, which is fairly lengthy. I cannot believe that this will have a serious impact on the tourist industry. We have made a lot of improvements over recent years on processing visas. It is timely and quick, and it is one of the fastest large-scale visa-issuing operations in the world. Over 90 per cent of all straightforward visas are issued within 24 hours. That compares extremely favourably with all other visa-issuing authorities; it is one of the best. I want to make the point about refugee status clear. When a recognised refugee is granted leave and is issued with a BID for the first time, they will not be charged. They may be charged when that BID is later renewed, when it expires after 10 years. There is not going to be the problem that the noble Lord envisaged. On the point about UK universities, I expect that we would consult them in any event. We consult them in detail about students, and they do not always agree with us, but we go through that process. As I understand it, our rates are very competitive internationally, which is one reason why we continue to be one of the favoured destinations for students across the world who come to study out of their home country.
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The Earl of SandwichCrossbench- Quote
- As far as I understood the point made by the noble Lord, Lord Dholakia, he was referring to asylum seekers and not to registered or accepted refugees. That is a major point, which I am sure we shall bring back. Will the Minister reflect further on that, without responding now?
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- Lord Bassam of BrightonLabour
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- Asylum seekers are issued with the ARC card, and we do not charge for that, so that is not a terribly relevant point. However, I hear what the noble Earl says, and if I have anything further to offer for clarification I will do so, but this is not quite the problem that the Committee imagine.
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- Lord AveburyLiberal Democrat
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- We will all be grateful for the assurance that asylum seekers will not be charged and that the documents issued to them will be free. I want to add to the list of bodies that I hope the Government will consult before finalising the arrangements. They should include the Refugee Council. Surely that is a reasonable thing to ask, considering that there may be people who come within the sphere of interest of the Refugee Council who may need to apply for BIDs. When they come to the end of the process and are granted asylum, they will not have a large sum of money at their disposal, and it may be unreasonable to ask them to suddenly cough up. As the noble Lord, Lord Hylton, has pointed out to me, there may be also a backlog of old cases that will need to be dealt with, and we need to ensure that they are dealt with fairly and that people do not suddenly find themselves in financial difficulties as a result of the imposition of these requirements. I am grateful for the assurance that the Government will consult the UK universities. I hope that they will also consult the tourist industry and the Refugee Council, before they reach finality on the fees to be charged. I hope that they will conclude that this is a case where cost recovery alone is sufficient and that they do not need to overcharge, as they have done with some of the fees that I discussed earlier, particularly the outrageous charge for indefinite leave to remain. Having extracted all that we are going to get from the Minister on this subject, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 5, as amended, agreed to. Clause 6 agreed to. Clause 7 [Effect of non-compliance]:
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- Baroness Anelay of St JohnsConservative
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- moved Amendment No. 21:
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- Lord AveburyLiberal Democrat
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- The penalties provided in subsection (2) are already pretty drastic. I dread to think what the Government might have in mind to add to them. I treat this as a very important subject. When you are talking about hundreds of thousands of people in possession of BIDs—in the end that could run into millions—the accidental failure to comply with requirement regulations is a point that needs to be seriously considered. The Secretary of State appears to be given these powers to impose penalties without any form of appeal system. I may be wrong on that; I have not seen one in the Bill, and the Minister will correct me if I am wrong. A new requirement is imposed and half a million people are supposed to comply with it. Suppose only a handful, say a few dozen, are not aware of the announcements which the Minister has assured us will be widely disseminated through television and other means, and, as far as possible, through direct communication with the holders of BIDs. As the noble Lord will be aware, the postal system is not 100 per cent reliable, and people change addresses. There are bound to be people who do not receive direct communication and therefore will fail to comply with some requirement of the regulations through inadvertence and through no fault of their own. Would it be a defence to a charge of failure to comply that the person was not aware of the notification or did not receive it? I was not sure exactly what the Minister replied to that.
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- Lord Bassam of BrightonLabour
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- I am very grateful to the noble Baroness, Lady Anelay, for tabling the amendment because the explanation is very simple. As the clause stands, the consequences of failing to comply with a requirement of regulations made under the biometric registration provisions are set out. The clause also gives the Secretary of State the discretion to decide which of the listed consequences is appropriate in the circumstances of the particular case. Therefore, one could argue that it is graduated. The existing provisions do not give the Secretary of State a power to impose sanctions, other than the ones listed in Clause 7(2). I reassure the Committee that it is not our intention that the Secretary of State should be able to use any other sanction, other than the ones already listed in Clause 7(2). The noble Lord, Lord Avebury, asked where there might be a right of appeal to. I refer him to Clause 11, which covers penalties and appeals. I think that he will find the answer there. For immigration matters he should refer to the Nationality, Immigration and Asylum Act 2002. Finally, before the Secretary of State imposes a sanction, he or she—she at present—will, of course, consider all relevant circumstances. That will include reasons why the person did not comply. The noble Lord, Lord Avebury, focused on that point earlier. It has to be right that sanctions will not be imposed unreasonably. Therefore, a test of reasonableness will be in place.
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- Baroness Anelay of St JohnsConservative
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- I realise that the Minister is trying to be helpful. He is trying to say that the drafting of Clause 7(2) is intended to deliver what I want—a closed list and not an open list. The noble Lord agrees with that. The difficulty is that my experience of our discussions on a similar drafting in the context of the Serious Crime Bill earlier this year led me to believe that the words “in particular” would result in an open list, not a closed list, and would give the Government the opportunity to extend the list of punishments later by regulation. Will the Minister and Home Office officials look at our consideration of Schedule 6 to the Serious Crime Bill? That gives permission for the Secretary of State to extend the purposes for which data matching may take place. As originally drafted, the Serious Crime Bill gave examples of the purposes which might be added. The Government agreed to my request that the words “in particular” should be knocked out because that restricted the list from being one of examples—an open list—to being a closed list. That is where my confusion arises. The Minister is trying to say, “You’ve got what you want here”, but I am saying, “I don’t think I have if what we did in the Serious Crime Bill delivered what I required in that instance”. I appreciate that this appears to be semantics, but it is not intended to be. It might be helpful if I talk to the Minister between now and Report. I hope that there will be a way of resolving the matter. We may need to consider the progress of the Serious Crime Bill in another place because the drafting of these Bills needs to be consistent. For the moment, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 21A:
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- Lord AveburyLiberal Democrat
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- We were very grateful for the Minister’s letter, in which he argued that recording biometrics helps to combat human trafficking, particularly of children who may be smuggled into the UK using other children’s identities. The noble Lord rightly repeated that argument, which we take very seriously. We agree that the debate on human trafficking, which your Lordships held last week, was a very useful contribution to the joint working of all parties in all sections of the community in supporting the Government’s actions against trafficking. The Minister said in that debate, and the noble Lord repeated, that the BID will help us to be certain of children’s identity. In the near future, however, everyone entering the UK from outside the EEA will have a biometric visa; so a child entering openly through a port could not take on another child’s identity at that point. Nor would there be any point in the child’s carers doing so when applying for a BID, as, having entered legitimately, the child would be entitled to a BID in his own right. On the other hand, if the child has entered clandestinely, the trafficker could not obtain a BID for him because his biometrics would not match those on the database, although one must enter the caveat that the EU says that sufficiently reliable technology is not yet available for the one-to-many searches requirement, as I said before. We agree that a parent or guardian should be given the responsibility for ensuring that the child has a BID, including the process of taking the biometrics for that purpose. Here we return to the question of the minimum age at which it is useful to take a child’s biometrics in the light of the evidence that was given to the Public Bill Committee of the changes that occur in the child’s fingerprints in the years before he reaches the age of 16. I reiterate that the committee was told that this would not have been an issue if the iris had been chosen as the principal biometric, because the iris remains constant from a very early age. It seems that it was decided to go down the fingerprint route because it was convenient for matching up with the police legacy systems. That is very unfortunate because iris technology looks to be the winner in the long run. It has already been adopted successfully by the immigration authorities in Dubai, by the British Airports Authority, and by several other airport authorities around the world to authenticate passengers entering fast-track processes. As the Bill stands, there will be nothing to prevent us from using iris recognition later on, but as I asked before, is the Home Office doing any work on this so that we are not committed for ever to what may become obsolescent technology? The age at which a parent will have to apply for a BID on behalf of a child has not yet been determined, but from our previous discussions it will certainly be less than 16, and it may be as low as five or six. I asked the noble Lord, and perhaps he can tell the Committee, what the age limit is at present for biometric visas in overseas posts. Is it the intention of the Government to align the minimum age requirement for visas and BIDs? Whatever age is chosen as the minimum for biometrics, will there be arguments about age determination similar to those that we have now about whether a child is over or under the age of 18? If the visa and BID minimum age is the same, any disputes would arise in the country of origin, because once the fingerprints of a child had been taken for visa purposes, it would presumably follow that they could be taken for BIDs.
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- Lord Bassam of BrightonLabour
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- It may well be that I have to conduct some longer correspondence than I had hoped on these points. As ever, the noble Lord has come up with some questions to which I do not yet have an answer. In general terms, we need to continue to develop the technologies that the noble Lord referred to, but this is something that, as the noble Lord said, would be practical for development in the future. We intend to keep iris recognition technology under review. However, the provisions in the EU biometric residence permit regulations currently relate only to face and fingerprint recognition. On double checking, there is a possibility of child X—who is actually child Y—being cared for by one adult, which would be double checked when applying for a BID. That element is there in the way in which this will work. I am happy to consider further the points that the noble Lord has raised. Perhaps it is worth adding that, considering the EC regulation, it will require us to use fingerprint and facial recognition, largely because it is tried and tested and because we have existing databases to check against. We will of course keep our minds open regarding iris recognition technology. The other point was about age. Currently, a child of five or over who applies for a visa is fingerprinted. That is under our existing regulations.
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- Lord AveburyLiberal Democrat
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- My point about age was that we now have arguments about whether a child is over or under the age of 18, but we could be having similar arguments about whether a child is over or under the age that is specified as the minimum for taking fingerprints. A child has to have a BID, as I understand the Minister, if the child is over five or six. Equally, there could be arguments about whether the age of the child is accurately claimed by the parent or guardian. They want to subject this five or six year-old child to the sort of procedures that are now in contemplation for determining whether a child is over or under the age of 18. I hope that is not true, but it is one possibility that is raised by having a very low minimum age at which a child would have to register to get a BID.
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- Lord Bassam of BrightonLabour
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- Indeed, that is the case. It must be right. I tend to think that we could do much more about human trafficking. I believe in effective law enforcement as a discouragement. It will help us in the fight against human trafficking, which is one of the great evils of our time. In the past few months, we have had a lot of debate and discussion about slavery because of the anniversary of Wilberforce’s Act. It is a stain on our nation that trafficking and exploitation of children exists and carries on. It is essential that we have the facility to determine age because, as we have all learnt over the past few years, the age at which young people are exploited in this appalling way can be very young indeed. So this will be a useful tool in our fight against trafficking and exploitation. Amendment agreed to. [Amendment No. 22 had been withdrawn from the Marshalled List.] Clause 7, as amended, agreed to. Clause 8 [Use and retention of information]:
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- Lord JuddLabour
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- moved Amendment No. 23:
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- Baroness Anelay of St JohnsConservative
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- I rise because I have Amendments Nos. 24 and 25 grouped with Amendment No. 23. As has become apparent from our previous debates, we are very concerned about the wide powers that regulations will give Ministers to permit the use of information for specified purposes that are not directly related to immigration. I can be brief; although not quite as brief as the noble Lord, Lord Judd, who was exemplary in these matters, but I will try. First, I will jump to Amendment No. 25. It tried to elicit from the Government very much what they have put in government Amendment No. 23A. We were trying to find a list of the purposes for which it would be proper for information to be used. The Government’s list is at variance with ours. However, I shall consider further between now and Report whether it satisfies us. As with the amendment that we dealt with earlier, the fact that we had only 24 hours’ notice of it means that my honourable friends have not been able to consider it properly. However, it looks as though it goes a long way towards satisfying us. Our intention with Amendment No. 24 was to try to prevent fishing expeditions. As has been seen today, the Government are collating more and more personal data across all departments. This is just one part of that exercise. We have already seen in the Serious Crime Bill that the Government are embarking on a very wide piece of work on data matching and data mining. In Amendment No. 24, we are trying to limit the use of the powers in this Bill to circumstances that are already enshrined in legislation and, therefore, in some form or another have already been debated and acceded to by Parliament. So, again, we are trying to look at the range of government powers to see whether they are adequate.
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- Lord AveburyLiberal Democrat
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- Clause 8 provides a link between the information contained on the document and the information that would be held on the national identity register created by the Identity Cards Act 2006. It allows regulations to permit the use of information for specified purposes not related to immigration, and it provides that there is no need to destroy information if it is retained in accordance with other enactments. The Joint Council for the Welfare of Immigrants has argued that this could be seen as an intention by the Government to collect data for the purposes of enforcing destitution, such as we were discussing earlier, and denying healthcare in some scenarios, which could breach the UK’s human rights obligations under various international instruments. The JCWI foresees that the effect of the enforced destitution regime of immigration control, coupled with the universal registration of non-EEA nationals before the rest of the population, will lead to a culture where officials routinely demand production of BIDs and people will effectively be compelled to carry them. It believes that a culture of biometric data collection, sharing and checking of associated biometric documentation against registers will mean discrimination against visible minorities in the UK. To some extent, that was confirmed by the discussion that we had earlier, when the Minister did not see anything odd in an employer requiring a person of Somali appearance to produce a BID, although he did to some extent correct himself later on, when he said that national insurance documentation would be perfectly satisfactory if that was available. The JCWI believes that this culture will mean discrimination against visible minorities in the UK. It cites in support of that claim the fact that in several European countries where identity documents are already compulsory ethnic minorities are disproportionately checked. We fear that the same is likely to happen in this country. We fear above all that the introduction of BIDs will systematise the destitution of hundreds of thousands of irregular migrants now surviving in the parallel economy, with disastrous consequences not only for the migrants themselves but for the local authorities, charities and faith groups who will have to bear the burden of responding to this widespread destitution in one form or another. It will have a particularly adverse effect in London and other urban areas where migrant populations are disproportionately concentrated. Before the scheme is introduced, I beg the Government to come up with a strategy to deal with the problem. Perhaps the Minister could begin by telling the Committee this afternoon what they propose to do, when BIDs are introduced, about the 100,000 irregular migrants and failed asylum seekers from Zimbabwe.
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- Baroness Anelay of St JohnsConservative
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- I rise, unusually, to remark on the fact that we are approaching 6 pm, and I appreciate that the rules today require that we must, regardless, finish at 6 pm. I observe to the Minister that he has got to speak to his own amendments, and therefore we will do our best to complete our contributions, but we do not wish to be guillotined. We appreciate that if we reach 6 pm and we have not completed this group, or if we have started the next group and have not completed it, we have to suspend, even if we are in the middle of debating an amendment.
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- Lord HyltonCrossbench
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- I am concerned about government Amendment No. 23A, in particular subparagraph (d) which, as far as I can see, makes it possible to use information for investigating any offence at all; trivial, mediocre or serious. That is why Amendment No. 25, tabled by the noble Baroness, Lady Anelay, is very much needed. It would limit the sharing of information to serious organised crime.
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- Lord Bassam of BrightonLabour
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- I am grateful to all noble Lords for their contributions, and to my noble friend Lord Judd for starting the debate. The amendment could lead to the clause being interpreted in such a way that the Border and Immigration Agency could not use biometric information collected under regulations made under Clause 5 for non-immigration purposes. Leaving the clause open to interpretation in this way would be undesirable because it would prevent the Border and Immigration Agency using this information for other important purposes, such as to check a fingerprint provided by the police against our databases in order to try to identify and trace an offender. For those reasons and on the grounds of good law enforcement, we must resist the amendment. On the other hand, government Amendments Nos. 23A and 25F—the latter is a consequential amendment—are very much in the spirit of the amendments tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. Our amendments seek to specify the non-immigration purposes for which biometrics information can be used. Careful consideration has been given to exactly what those purposes might be. For example, Amendment No. 23A ensures that where the police have a fingerprint from a crime scene and ask the Secretary of State to check that fingerprint against fingerprints she holds in order to trace a suspected offender, the Secretary of State can do that. It also allows for biometric information to be checked before a British passport is issued to certain types of British nationals. I should also make it clear that this amendment ensures that the Border and Immigration Agency can share biometric information by relying on its existing data-sharing powers, as long as the regulations provide for this. So Amendment No. 23A also allows the Secretary of State to specify additional uses for the information if these are identified in the future in regulations which will be subject to the affirmative resolution procedure. I want to assure noble Lords that any use of the information collected under these provisions must be in accordance with the Data Protection Act and Human Rights Act, because those are fundamental protections. We are right to rely on them because they provide the public with a degree of reassurance. I beg to move.
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- Lord JuddLabour
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- I am sure that we have all listened carefully—
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- Baroness Anelay of St JohnsConservative
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- I am sure that the noble Lord, Lord Judd, is about to withdraw his amendment. In that case, perhaps I may come back with one question. I was rather thrown by the fact that the Minister sought to move his amendment when he cannot do so yet. He is only speaking to it. However, it is late in the afternoon after quite a few hours of debate. I want to ask one question about new paragraph (f) in government Amendment No. 23A, which states, “for such other purposes (whether in connection with functions under an enactment or otherwise) as the regulations may specify”. What kind of purposes and functions would have no relation to an enactment? Has the Minister considered that? If not, I am happy for him to write to me. It is the only query I have on this list.
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- Lord AveburyLiberal Democrat
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- As on the previous occasion when we considered government Amendment No. 16B, the effect of spelling out the conditions in paragraphs (a) to (e) is almost entirely spoilt by the addition of paragraph (f). Having set out the various purposes in the first five paragraphs, the Secretary of State is then given carte blanche to do anything she likes, not just in connection with another enactment but with whatever may come to mind. This is the second time we have had an example of this sort. Not only is it incumbent on the Minister to explain what these other purposes are, as the noble Baroness has requested, it is also necessary to explain why such a catch-all is needed at all. Why is the Secretary of State not satisfied with the provisions set out in paragraphs (a) to (e), and what is going through the minds of the draftsmen in the Home Office that might possibly create the need for the additional powers sought in paragraph (f)? If the Minister cannot explain it, other than that paragraph (f) has been added simply because someone thought there may be a need for it at some future date without having anything specific in mind, I think that we will want to delete it at a later stage.
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- Lord Bassam of BrightonLabour
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- The explanation is very simple, although I am not sure whether the Committee will like it. Paragraph (f) simply preserves the Secretary of State’s common law power to share information. That power already exists. This simply seeks to re-establish the status quo, as it were.
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- Lord JuddLabour
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- I have listened with great interest to the contributions by other Members of the Committee. The noble Baroness, Lady Anelay, asked me whether I was about to withdraw my amendment. I do not know why she made that assumption. On the basis of everything that I have said, I should have thought it was most unlikely that I would withdraw my amendment were it not a case of force majeure and the Grand Committee procedures with which we are faced. I wanted to get that on the record. There is one other thing that I should report to Members of the Committee. I had to visit my office briefly this afternoon. It is extraordinary how these things happen, but quite coincidentally I noticed that among the mail on my desk—I emphasise that this was delivered with the mail this afternoon—was a copy of the Government’s reply to the report on asylum of the Joint Committee on Human Rights. I was tempted to seize it and, when I rejoined the Committee, to start to analyse what was in it. However, it seemed to me that that would be too instantaneous a reaction and that I needed to consider very carefully what was in it. However, it will be considered very carefully before we reach the next stage of the Bill. At the moment, I am far from satisfied but because of the procedures I can only assist my noble friend—which in another sense I am glad to do—by withdrawing the amendment.
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- Lord Bassam of BrightonLabour
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- Before my noble friend sits down, I should mention two things. First, I did not respond to the question of the noble Lord, Lord Hylton. I think that the noble Lord was unhappy that we can check fingerprints for any offence irrespective of its severity. An offence may not be related to a serious organised crime, for example an isolated murder, but we would want to be able to undertake a check for the police in those circumstances. I probably need to put a correction on the record. I may not have made myself sufficiently clear when I responded to questions relating to illegal working. I should make it clear that in those circumstances an employer may ask a prospective employee to produce a number of documents. They include the British passport, a birth certificate or national insurance number combined with another document. I want to ensure that the record is correct. I am concerned that I might have inadvertently given an inaccurate response and therefore I want to make that correction at this stage.
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- Lord AveburyLiberal Democrat
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- The point that we were discussing, to which the noble Lord has just replied, is whether the employer would feel obliged by the legislation to demand documentation of this sort from anybody who belonged to an ethnic minority, simply to safeguard his own position now that we have created a criminal offence which the employer might commit if he failed to take sufficient precautions against hiring somebody who was not legally empowered to take a job in this country. The two effects combined—the existence of these documents, plus the criminal penalties that may be levied against an employer—would be a standing temptation to any employer to safeguard himself by routinely asking for the production of this document, even when a national insurance certificate was already in existence. One would be belt-and-braces assured that the BID would always be asked for whenever someone with the appearance of belonging to an ethnic minority walked in to apply for a job with an employer.
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- Lord Bassam of BrightonLabour
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- To conclude, the code that is issued makes it clear that any employee should be checked, irrespective of nationality. The code is intended to enable employers to comply with race relations legislation. I understand the noble Lord’s difficulty, but what we are trying to achieve is in employers’ and employees’ best interests. That will probably be understood more widely in the labour market. I think we should close on that point because there is not much point in opening it up for further debate. I am sure we can return to it at another stage.
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- Lord JuddLabour
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- I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 23A:
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- Lord Bassam of BrightonLabour
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- This may be a convenient moment for the Committee to adjourn until next Thursday at 2 pm.
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The Deputy Chairman of Committees (Lord Haskel)Labour- Quote
- The Committee stands adjourned. The Committee adjourned at 5.52 pm.
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