Column Number: 99
Standing Committee D
Thursday 7 July 2005
(Afternoon)
[Mr. Roger Gale in the Chair]
The Committee consisted of the following Members:
Chairmen: †
Mr. Roger Gale, Mr. Jimmy Hood
†Baird, Vera (Redcar) (Lab)
†Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
†Borrow, Mr. David S. (South Ribble) (Lab)
†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Drew, Mr. David (Stroud) (Lab/Co-op)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Farron, Tim (Westmorland and Lonsdale) (LD)
†Garnier, Mr. Edward (Harborough) (Con)
†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)
Mercer, Patrick (Newark) (Con)
†Mountford, Kali (Colne Valley) (Lab)
†Palmer, Dr. Nick (Broxtowe) (Lab)
†Prisk, Mr. Mark (Hertford and Stortford) (Con)
†Robertson, John (Glasgow, North-West) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Wallace, Mr. Ben (Lancaster and Wyre) (Con)
John Benger, Emily Commander, Committee Clerks
† attended the Committee
Column Number: 101
1.30 pm
The Chairman: Good afternoon, ladies and gentlemen. I have two matters of concern and interest to tell the Committee. The usual channels have indicated that the Programming Sub-Committee will meet immediately after the consideration of the Bill is adjourned. Committee members need to be aware that that Committee may sit for two hours, although that is not necessary. Thereafter, any of its findings are debateable for a further half hour by the full Committee. That debate may take place this afternoon, although I suspect that it will take place, more properly and more probably, at the start of proceedings on Tuesday morning.
The other issue that I feel obliged to raise arises out of this morning’s events. The Home Secretary and shadow Home Secretary have made it abundantly plain that it is far too early to attribute cause or blame. Matters are still in a very evolutionary phase. I would therefore regard it as highly reprehensible if any Member from the Front or Back Benches sought, at this stage, to associate those events in any way with the legislation before us this afternoon.
Clause 2
Individuals entered in Register
Amendment proposed [this day]: No. 13, in page 2, line 45, leave out ‘the prescribed period’ and insert
‘a period of 31 days’.—[Mr. Garnier.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 14, in page 2, line 46, at end insert ‘or’.
No. 15, in page 3, line 2, leave out from ‘period’ to end of line 4.
No. 187, in page 3, line 4, at end insert
(d) he is a citizen of an European Union Member State with an approved identity document issued by that state.’.
The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): Thank you, Mr. Gale, and welcome again to our proceedings. I cannot remember whether I broke the furniture under your tutelage or that of Mr. Hood. I shall try to resist doing so for the remainder of our deliberations.
Column Number: 102
Hopefully, during interventions I dealt sufficiently with the points about reciprocity, standards and all the other elements relating to the European Union, so I shall simply dwell on the lead amendment and amendment No. 14.
As I read them, paragraphs (a), (b) and (c) of clause 2(3) are not meant to be joined. The point made by the hon. and learned Member for Harborough (Mr. Garnier) in amendment No. 14 is that paragraph (a) should be linked to paragraph (b). He queried the “or” at the end of paragraph (b). As I understand it, it is (a) or (b) or (c), so there is no need for an “and”.
Mr. Edward Garnier (Harborough) (Con): Or an “or”.
Mr. McNulty: Yes. The subsection flows; we do not have to put “or”s all over the place—the “or” is automatically assumed. It was interesting earlier to hear a very eminent lawyer attack the English language as it appears in UK legislation, but I shall let that pass. I am told that the legalese is such that the “or” at the end of paragraph (b) implies an “or” at the end of paragraph (a). It is “or”, “or”, “or”; the three are not linked together by an “or” or an “and”.
Mr. Garnier: I cannot think whom the Minister was referring to just then. My complaint about the language related to the use of the word “less”, and not to the absence or otherwise of the word “or”.
Mr. McNulty: I do not see how I could misread amendment No. 14, which says in all clarity—that is quite unusual for some of the amendments—“at end insert ‘or’.” That is relatively clear. If I have missed the point, we shall perhaps return to it subsequently.
Amendment No. 13 has substance; it would give an entitlement to an identity card to any foreign national who had leave to remain in the UK for more than one month. However, as I said when I made my point about reciprocity, European legislation prevents the UK from requiring European economic area nationals and their family members to register before they have been resident for three months.
In addition, I do not consider that such a short period would be helpful, either to the individual or for controlling immigration, even if it were legally possible. As I said earlier, some 91 million people arrive at UK ports yearly—that is the latest figure, from 2003. Of those, 64 million were British, 15 million were European economic area nationals and 12 million were foreign nationals subject to immigration control.
I dwelt this morning on the e-borders programme to be implemented for 2008 onwards. It will capture the 12 million foreign nationals who are subject to immigration control and visa restrictions. Clearly, in 2003, many of them will have been short-term visitors—tourists or business people—and they will be in future, and I do not see the point of providing under the Bill that a foreign national coming here for, say, a six-week holiday should be expected to register and obtain an ID card or, indeed, have an entitlement so to do.
Column Number: 103
The Bill allows us to prescribe a period after which foreign nationals would have an entitlement to register and be issued with an ID card. It is likely that that period may be three months, after which we will require them to obtain a card. However, we need to retain a power to prescribe the period so that, should it prove necessary to extend or reduce it, we have the liberty to do so. That is why the period of three months is not in the Bill.
There are good reasons for the three-month period. At present, the UK admits short-term visitors for up to six months, but internationally it is more common for people to be admitted for three months for a short visit. In the USA, for example, visitors are admitted for 90 days, while in Europe three months is the norm for a short visit. There is little point in requiring people visiting the UK for such a short period as 31 days to register and obtain an ID card, and to meet the costs of so doing. However, we clearly need to draw a line somewhere and it is more logical to expect that anyone here for more than three months is resident on a longer-term basis—as a student, for example—when the need to register and obtain an ID card would seem much more sensible. The three-month rule would capture the 840,000 Irish Republic nationals to whom the hon. Member for Lancaster and Wyre (Mr. Wallace) referred.
Mr. Tobias Ellwood (Bournemouth, East) (Con): The Minister talked about how there may be scope for the ID card to be used as a form of travel document in Europe. Leading on from that rationale, I suspect that some visitors who come from Europe to the UK with an EU-type ID card could enter the United Kingdom using that card rather than having to jump on to our ID card system. I accept that I am looking forward a little, but if that were the case, would there be separate registers or some form of EU-wide register?
Mr. McNulty: That system may indeed prevail in future, but only within the context of the reciprocity, standards and data-sharing elements that clearly do not prevail at present and to which the hon. Member for Orkney and Shetland (Mr. Carmichael) referred. At present, after three months’ residence, EU nationals will equally have to register and secure a card. The speculative future outlined by the hon. Member for Bournemouth, East (Mr. Ellwood) may well prevail, but it will do so on the basis of similar—if not identical—standards and reciprocity in data-sharing and the format of the ID card and registration system. We are nowhere near that at the moment. Indeed, even those who have moved in the direction of limited biometrics on ID cards have, like the Spanish example, done so only provincially and not nationally. Things may well move in that direction, but reciprocity in respect of EU nationals using their ID cards will not prevail until all those other elements are in place. I think that that is clear and has some logic to it.
Sadly, regardless of whether those who seek to do us harm have been here 10 days, 31 days, one month, three months or six months, it is unlikely that the situation would be better if they registered after 31 days—but there must be a cut-off point. The
Column Number: 104
commonly accepted cut-off point in the international domain between short and long visits is either 90 days or three months, and we consider that three months is appropriate. To provide flexibility and given as we all understand that this is enabling legislation, there is a prescribed period in the Bill, which will leave us the latitude either to increase or decrease that dimension—more likely decrease, if anything. I ask the hon. Gentleman to withdraw the amendment because, in the context of the Bill and its enabling framework, we consider it otiose.
Mr. Garnier: This has been a fairly constructive debate. I should like to light upon five broad areas. First, perhaps not realising the significance of what he said, the Minister mentioned that reciprocity with the European Union is our aim: the Government want a common standard of identity card, which must imply a common system of identity registration. We do not know what the enabling regulations will be—still less does the Minister—but if the Government have their way in due course there will be, if we are to take him at his word, some sort of rolling out, to use his favourite expression, across the 25 nations of the European Union of a standard identity card and an underlying data-accumulation system into which each member state will be able to dip in order to enjoy reciprocity and ensure that all those who are registered are who they say they are and that their personal data is truthful.
The Minister said candidly that this is an enabling Bill—I applaud him for that—and, necessarily, as with all such Bills, it is difficult to know precisely what he intends to enable. We do not know the shape or detail of the various provisions that the Home Secretary will have power to create as secondary legislation if this Bill becomes an Act. However, since the Minister is bound up in that necessary vagueness, he would like the Bill to remain necessarily vague. So that is the answer; we are not to have the degree of certainty that I suggest is the better way to produce legislation.
My hon. Friend the Member for Lancaster and Wyre produced some detailed figures on the numbers of people coming in and out of the United Kingdom during the course of a year and I think that the Minister confirmed those.
Mr. McNulty: With respect, the hon. Member for Lancaster and Wyre cited a series of numbers about tourists coming in and out of the country; he did not—and did not claim to—quote figures that include everybody who comes in and out. Those are the ones that I quoted.
While I am on my feet, and purely for the record, I should add that it is interesting how the hon. and learned Member for Harborough misquotes and misinterprets what I say. I have sought not to rise to such provocation. What he said in his opening two paragraphs bore no relation to what I said; nor can any such extrapolation be made other than by him.
Mr. Garnier: I have done no more than to draw reasonable inferences from the words that came from the Minister’s mouth. If my inferences and remarks are disobliging, I am sorry for that. However, the Minister
Column Number: 105
cannot escape responsibility. It may not be his wish, but it is his duty to deal with the conduct of this Bill, which is a flawed piece of legislation, as we are endeavouring to point out. Others much wiser than me pointed that out with far greater vigour and precision on Second Reading, as have people outside the House. The clear implication of what the Minister said and of the text of the Bill is as I have suggested. It is up to others to agree or disagree, but that is my opinion based on the information that I know.
Before the Minister rose to his feet just now, I was saying that my hon. Friend the Member for Lancaster and Wyre produced some detailed figures about people coming in and out of the United Kingdom and, as the Minister correctly said—and as I would have said had he not interrupted—those were confined to tourists. The Minister told us that there were approximately 64 million visitors—or that number of journeys made—to the UK. We could call them crossings of the border, and they might have been undertaken by sea, air, or train. Of those, 15 million originated in the European economic area and 12 million involved what were called foreign nationals: those who required a visa to enter. I think that the overall total is 91 million.
1.45 pm
So, a huge number of people already come in and out of this country. We assume that as mobility across Europe and the world becomes easier that number will grow. It must follow that the number of people who stay for less than three months will grow. Therefore, there is potential for problems to arise, as was pointed out by my hon. Friend the Member for Lancaster and Wyre. He said that terrorists do not go for the obvious target but look for the weaknesses in the security and policing systems and in our institutions. That is where they go for.
I am no expert on security, unlike my hon. Friends the Members for Bournemouth, East and for Lancaster and Wyre, but it seems that this aspect of the Bill opens up an area of weakness, which the Government need to address. I accept that the Minister says that the three-month period is the best as far as he and his Government colleagues are concerned; other countries use other numbers. However, we must understand that if an arbitrary time limit is set below which registration on the data system and ownership of an identity card are not required, people cannot then say that the Bill and all that it will enable—whatever that might be—will provide a bulwark against terrorism, serious crime, other crime, illegal working or breaches of our immigration rules. It simply does not stack up. The Government must understand that if they wish to push the Bill through in all its vagueness, they must tell us precisely what they think the real limits of its capabilities are. As the Bill is currently presented to us, that has not been done.
Column Number: 106
I will not detain the Committee over the fascinating discussion that the hon. and academic Minister—the former admissions tutor—and I had about the use of the word “or”. Clause 2(3)(a) states:
“remain there that will end less than the prescribed period after it was acquired”.
I gently suggest to him that a better way of dealing with that would have been to have used “sooner” or “earlier” rather than “less”. That was the point I was making about the language; it was not in relation to the question of “or”. That is a side point and one that can be dealt with by an English master in due course. For the moment, I will content myself with registering my concern about the issues that we have discussed and stating that I do not believe that the Government have adequately dealt with the matter. I trust that we may be able to deal with it on Report, if not now. For now, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): I beg to move amendment No. 125, in clause 2, page 3, line 5, leave out subsection (4).
The Chairman: With this it will be convenient to discuss amendment No. 156, in clause 8, page 7, line 28, leave out subsection (5).
Mr. Carmichael: As has been observed several times, we are dealing with enabling legislation. Obviously, as a result there will be a certain vagueness in the language used. It is not anticipated, nor is it intended, that every scenario will be outlined in the Bill. That is a perfectly proper and legitimate way for the Government to proceed. I take no issue with it. However, in our view, clause 2(4) goes beyond what might be regarded as vague and creates a substantial loophole in the law. It offers the Secretary of State a range of powers that, although he might not intend to use them, go beyond what Parliament should allow.
Amendment No. 156 would have much the same effect in relation to the card as amendment No. 125 would have in relation to the ID register. We have been spared having too many debates on whether it is appropriate to use “must” instead of “may”, or “may” instead of “shall”. That is a deliberate tactic as far as I am concerned—although I cannot speak for anyone else. However, I mention in passing that clause 8(5) provides that an ID card “may” be issued to an individual who comes under the ambit of that measure, and I suggest that it would be more appropriate to replace that “may” with “shall”. It is possible for information to be held on the identity database without the individual concerned who is caught under clause 2(4) being aware of that. In these circumstances, the mandatory issue of a card might well be the best way of ensuring that somebody is aware that information on them is held on the database.
I shall address my principal remarks to clause 2(4). It is worth stating at the start that there has been some minor but noteworthy redrafting of that subsection. In the previous version of the Bill, it read:
Column Number: 107
“An entry for an individual may be made in the Register (whether or not he has applied to be, or is entitled to be, entered in it) if information capable of being recorded in an entry for him is otherwise available to be recorded.”
The current version is broadly similar, but the requirement is added that
“the Secretary of State considers that the addition of the entry to the Register would be consistent with the statutory purposes.”
That rider causes me much concern. Paragraph 25 of the explanatory notes describes a scenario with regard to the Secretary of State that is—properly and legitimately—envisaged. In relation to the holding of information on a failed asylum seeker where biometric information has been acquired for their asylum application, it is said that at the point at which the application is refused that person’s information should be added to the database. I do not have an issue with that; I think that it is not an unreasonable use of the provision, but I suggest that broader applications than that would be available to the Home Secretary.
In this morning’s sitting, the Minister said that this clause could be used if the Secretary of State thought it necessary to hold information on those who were rising 15 and who would not in the normal course of events yet be subject to the provisions of the legislation under subsection (2). We have no way of knowing who is to be added in this way. There is nothing in the Bill that would require the Home Secretary or any Minister to come to Parliament to seek approval for the addition of those people to the database. In the circumstances, it seems to me that that is a measure of discretion too far. That power is too wide. Although we would not in any way impugn the current holder of the office of Home Secretary—he is a decent and honourable man—we are bound, as parliamentarians, to have regard to the worst-case scenario. The day may come when somebody without the high standards and propriety of the current Home Secretary holds that office, and for him or her to be allowed to add people, by classification or individually, case by case as they arise, to the identity database seems a rather unnecessarily widely drawn power.
My other concern about the subsection is that it allows the importation into the identity database of information that has not been obtained specifically for the purpose of the compilation of the database. Earlier this week, the Minister kindly allowed a discussion with some of his officials and I discussed that point with them in relation to another part of the Bill. However, I am concerned that holding biometrical information that has not been specifically obtained by those charged with the compilation of the identity database could threaten that database’s integrity.
I return to an example that I used earlier this week: the use of fingerprints. The Minister may or may not be aware of a case in Scotland involving Shirley McKie, a former fingerprint officer with Strathclyde police; the hon. Member for Glasgow, North-West (John Robertson) will be familiar with it. The case has raised substantial doubts about the proper and efficient conduct of the fingerprinting database employed by the Scottish Criminal Records Office.
Column Number: 108
There is a real difficulty if one seeks to import from another source information that has not been obtained for the purpose of the compilation of the database, and the consequences of the use of that information, which may subsequently turn out to be wrong, are severe for the rights and liberties of the individual who may be required to rely on the card.
Another thing occurs to me almost as I speak. There may be an obvious answer to it, but it is brought to my mind by the question of importing information. Perhaps the Minister will be able to give me an answer. It would be possible, given the drafting of subsection (4), to put a second entry in the identity database. It would not be the primary entry compiled on the basis of a visit to the ID card office, but one in which data imported from another part of the Government could be held. I may be completely wrong; I do not pretend that that point has been carefully researched. It came to my mind almost as I spoke. However, is there any barrier to there being more than one entry on the database register? If there is not, I think that it would improve the Bill if that express prohibition were put in it. Perhaps we shall consider that point at a later stage.
We all accept that enabling legislation is drafted widely. I believe, however, that the provision is too wide and that we would be failing in our duties as parliamentarians who scrutinise the Bill, if we allowed the Secretary of State the degree of latitude that it is possible for him—or her, at a future date—to take, if he or she were so minded.
2 pm
Mr. Ben Wallace (Lancaster and Wyre) (Con): Will the Minister clarify clause 2(4), which states:
“An entry for an individual may be made in the Register”
under paragraphs (a) and (b)? Does “entry” mean a registrable fact or can it be other than a registrable fact as outlined under clause 1(5)? Does the provision give power to the Secretary of State to add extra information other than what is described at the beginning of subsection (5)? If the hon. Gentleman knows the answer, I shall not ramble on. However, if he does not, I can expand on why I fear such an outcome.
Mr. McNulty: I do know, and I was about to explain to the hon. Member for Orkney and Shetland why paragraph (b) is so important. It concerns statutory purposes and all that flows from them are registrable facts, as determined and limited under the Bill.
Mr. Wallace: I am grateful to the Minister. If that is a fact, it would not allow extra information such as travel information or other matters to be added to the entry. If it did allow that, it would confirm the fears of those who said that entry on the database broadened out from verification of identity, as opposed to Big Brother tracking people throughout the United Kingdom after entry and so on. What the hon. Gentleman said goes some way to alleviate the fears that people may have.
Column Number: 109
Mr. McNulty: I wish to pursue that point momentarily. If people were up to no good, the security services or the police would do far better by tracking their mobiles or conducting a credit card audit than by obtaining travel information about them. The provision is an important element, so we shall—shock, horror—resist the amendment. The point made by the hon. Member for Lancaster and Wyre was discussed during proceedings on the previous Bill, which is why paragraph (b) is in this Bill. It is a safeguard in respect of statutory purposes and goes back to what I was saying in our deliberations on clause 1—lengthy, but enormous fun, though they were—about the assorted nature of statutory purposes, the public interest and registrable facts, and how they deliberately interlock.
Clause 2(4) is intended to provide the flexibility needed to allow the personal details that are already available to be recorded when it would be useful to have them on the register, despite the fact that the person is currently not entitled to register. The hon. Member for Orkney and Shetland cited a useful example. Moreover, those who apply for asylum are issued with an asylum registration card on which elements of biometrics are stored. If we remove someone because of a failed application, by definition that person is not entitled to register on the database and subsequently have a full ID card. However, it might be useful to have information on the database that the person with those biometrics has already been removed once, having applied for asylum status under the name, with which such biometrics are associated. That might be the way to go subsequent to a further application for asylum, for citizenship and ID cards.
|
