UK Borders Bill

moved Amendment No. 15: 15: Clause 5, page 3, line 33, leave out paragraph (e) The noble Baroness said: I shall speak also to Amendments Nos. 16 and 17. I note that the Government have helpfully tabled some amendments in the group. The object of the amendments is to restrict the Secretary of State’s wide powers to do almost anything she wishes with people’s private information. I wrote the speaking notes before the recent changes in government personnel, so yesterday I very carefully changed my ““he””s to ““she””s. The amendments build on our previous debates led by the noble Lord, Lord Avebury, about the problems that may arise as a result of the way the Government plan to impose this system of immigration control. Clauses 5 to 15 set out the powers for the Secretary of State to make regulations requiring anyone subject to immigration control to apply for the issue of a biometric immigration document. Persons subject to immigration control are those who require leave to remain in the United Kingdom, whether or not they have leave to remain. We believe that the scope of the registration regulations is extremely broad. The bulk of the detail will be contained in the regulations made by the Secretary of State. These regulations can include such open-ended obligations as requiring the use of a document where a question arises about a person’s status in relation to nationality or immigration—we have had some debate about that—in Clause 5(2)(b)(iii), and requiring a person who produces the document to produce other information for comparison. That is in Clause 5(1)(c). We have also seen that there is potentially unlimited scope on what information can be required. Regulations can make provision about the content of the document, which, as we have seen from previous groups, can include non-biometric information, and allow for the document to be combined with other documents, as in Clause 5(2)(e). They can also require the document holder to notify the Secretary of State at any time stipulated by regulations and require the surrender of the document or any other documents, as in Clause 5(2(i)(j) and (k). Sanctions for failure to comply with any of the regulations can be severe. While the financial penalty is limited in Clause 9(3) to a £1,000 fine—that seems quite high—more drastic steps can be taken, such as the cancellation of leave to remain in the UK. Clause 8 provides a direct link between the information contained on the document and the information that will be held on the national identity register, created by the Identity Cards Act 2006. This allows for regulations to include provision to permit the use of information for specified purposes not relating to immigration, as in Clause 8(2), and provides that there is no need to destroy information if it is retained in accordance with other enactments, as in Clause 8(4). Therefore, the potential scope of regulations is extremely broad. They can theoretically force any non-EEA person to provide unlimited information for unlimited purposes. For example, regulations made under Clause 5(2)(d) could require that any person required to apply should provide detailed information about their medical history—we have had a slight reference to that—which could then be used for purposes which have nothing to do with immigration control. Our amendments have been tabled specifically to require the Government to justify such wide powers. We believe it is important for that to be clearly on the record so that the House may refer to it when the Government later tables any secondary legislation to put the powers in these clauses into effect. We have already heard from the noble Lord, Lord Avebury, about the limitations on the powers of the House regarding statutory instruments being brought forward. Amendment No. 15 therefore removes from the Bill the permission to combine biometric immigration documents with other documents. We accept that there may be a rationale for that, but the clause as drafted is vague. It would allow Ministers wide powers so that biometric documents could be combined with almost any other document and used for almost any purpose. Amendment No. 16 would remove the right of the Secretary of State to demand the surrender of other documents on the issuing of a biometric immigration document. Again, our main objection to the current drafting of the clause is its vagueness. It could entitle the Secretary of State to acquire all manner of documents that are not necessarily relevant to a person’s immigration or employment status. It is important that the Minister should explain how and why this power is compliant with the provisions of the Data Protection Act. Amendment No. 17 would limit the occasions on which a person in possession of a biometric document must notify the Secretary of State about a change in circumstances. The changes that would need to be notified should be limited to the following: change of address, change of name, or loss or theft of the document. All of our amendments, but particularly Amendment No. 15, would limit the use of biometric immigration documents to their stated purpose of tackling illegal working and other immigration offences. When we began consideration of the Bill, noble Lords received a letter from the noble and learned Baroness the Attorney-General, dated 22 June. She stated that government amendments would be tabled shortly. I appreciate that there was a hiatus because of government changes and ministerial appointments, so we did not see the government amendments until just before we entered this Grand Committee. That is unusual, because normally noble Lords have up to a week’s sight of government amendments, but sometimes only six days’. The noble and learned Baroness said in her letter that two amendments would specify in the Bill in more detail the circumstances in which the Home Secretary can suspend or cancel a biometric immigration document and would be more explicit about the circumstances in which the holder of a biometric immigration document is to notify the Secretary of State of a change in circumstances. The noble and learned Baroness also stated that she would table an amendment to make it clear in the Bill that the reference requiring the surrender of other documents on the issuing of a biometric immigration document is intended to mean only immigration-related documents. When we then saw the text of the amendments, I looked particularly at Amendment No. 16B—which the Minister will soon speak to—which, at first sight, appears to be very helpful indeed. It is, as the Minister would expect, always my practice before accepting a government amendment that appears to be a concession to consult my honourable friends in another place. I managed to have a brief word with my honourable friend Damian Green this morning, but as it was at our biweekly tea meeting, he could not give proper consideration to the matter. We scanned it together and accepted that at first sight it seemed helpful, while giving the Government the catch-all in subsection (l), where the Government can add anything else that they like—we are used to seeing that kind of get-out clause from the Government. It seemed to cover the eventualities that we had anticipated should be here. The list looks good, but between now and Report stage we have to hear what the Minister says about the rationale, and we have to have further consideration of the possible consequences to see whether any are going to be disproportionate or if there are any gaps that should be stated in the Bill rather than left to subsection (l). The Government have made considerable progress. I want to hear what the Minister says, but I reserve the right to come back on Report if need be. I hope that in respect of two of my amendments that may not be the case, but I think I will still have difficulty with Amendment No. 15. Perhaps the noble Lord will wave the magic Harry Potter wand and persuade me. In the mean time, I beg to move.