Borders, Citizenship and Immigration Bill [HL]

While I appreciate the thrust of the inquiry of the noble Lord, Lord Avebury, about the status of Schedule 8 to the Terrorism Act following the judgment in the case of S and Marper, I should be clear that I believe that the amendment would compromise the UK’s security. As the noble Lord noted, my honourable friend the Minister for Policing has written to him explaining the Government’s view on the case of Mr A. I believe that that reply still stands in this case. If it might be helpful to the noble Baroness, Lady Hanham, I would be very happy for her to see a copy of that letter, which explains the detail behind that case. As noble Lords may be aware, in the light of the judgment of the European Court of Human Rights on 4 December 2008 in the case of S and Marper, we are now considering how to implement it in a way which recognises the value of fingerprints and DNA data in protecting the public. A key part of the implementation process will be to engage in a public consultation on how best to bring the judgment into effect. Progress on implementation of the judgment is subject to review by the Council of Europe’s Committee of Ministers, and the Government have submitted a report for the committee’s next meeting on 19 March. The judgment recognises that other jurisdictions do not apply a "blanket" destruction policy to biometric data of those arrested and not convicted, but indicates that there is a need for a retention policy to reflect the fact that they were not ultimately convicted. As the Home Secretary explained in her speech to the Intellect trade association on 16 December, the Government will publish a forensics White Paper later this year. Included in it will be the Government’s proposed response to the S and Marper judgment. There are clauses in the Policing and Crime Bill which are intended to allow for regulations to be made which set out the detailed provisions on the retention of fingerprint and DNA data. The contents of the consultation paper and the outcome of that process will inform the content of the regulations to be submitted to Parliament. The ability for police Special Branch officers to take fingerprints and samples at ports of entry has become an increasingly important tool in countering the activities of known or suspected terrorists. We would not wish to undermine the thrust of policy in relation to the strengthening of border controls—through, for example, biometric visas—by weakening this specifically counterterrorism measure. It would not send the right message to those who pose a threat to the UK or reassure the public at large. In 2006, the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, wrote to the then Home Secretary following a meeting with operational counterterrorism police officers. The noble Lord endorsed the use of fingerprints taken at ports, under Schedules 7 and 8 to the Terrorism Act, and considered them to be of potentially considerable value in the investigation and intelligence-gathering work of the police at ports. In the context of international travel, it is not unusual for individuals to enter or leave the United Kingdom for periods exceeding one month. It is obvious that the value of the police checking and capturing fingerprints at a port and holding them for a month in the context of a long-term visit or period of study is limited for counterterrorism purposes while the suspect remains in the UK beyond one month. Furthermore, should information be received from, for example, abroad, the police’s efforts to identify a suspect who may be involved in terrorism, or perhaps locate how he left and entered the country, would be undermined dramatically if fingerprints had to be removed from records. Without wishing to prejudge the outcome of the Marper consultation, our view is that restricting the retention period to the extent that the amendment proposes would severely hinder the authorities’ efforts to counter and investigate terrorism and the movements of suspected terrorists, and, potentially, remove a hindrance on terrorist activity provided by the examination powers in Schedules 7 and 8. However, we will of course revisit all those issues as part of our consultation. The noble Baroness, Lady Hanham, asked about the reasons for taking fingerprints. The proposed power to take fingerprints allows us to get fingerprints and fix the identity of the individual whom we have put in prison for crimes in the UK and whom we wish to remove from the UK. Then we have a record when he tries to come back into the country. That is the reason for the specific measure in the Bill. Those individuals whom we seek to remove are those who have been sentenced to up to 12 months in prison and are eligible for automatic deportation under the UK Borders Act 2007. The amendment in Clause 48 is a very minor amendment to the UK Border Agency’s existing powers. I hope that that provides an answer to why we are taking fingerprints. On the specific amendment—and bearing in mind that a consultation is ongoing—I hope the noble Lord will await the Government’s wider response to S and Marper, as committed to by the Home Secretary. I ask the noble Lord to withdraw his amendment.