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Standing Committee E
The Committee consisted of the following Members:
Chairmen: †
Sir Nicholas Winterton,
Mr. Eric Illsley
†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brown, Lyn (West Ham) (Lab)
†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)
†Gerrard, Mr. Neil (Walthamstow) (Lab)
†Gillan, Mrs. Cheryl (Chesham and Amersham) (Con)
†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
†Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
†Leech, Mr. John (Manchester, Withington) (LD)
Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
†Malins, Mr. Humfrey (Woking) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)
†Miliband, Edward (Doncaster, North) (Lab)
†Prosser, Gwyn (Dover) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Scott, Mr. Lee (Ilford, North) (Con)
Dr. John Benger, Mr. Frank Cranmer, Committee Clerks
† attended the Committee
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Tuesday 25 October 2005
(Afternoon)
[Sir Nicholas Winterton in the Chair]
Clause 31
Duty to share information
Amendment moved [this day]: No. 30, in clause 31, page 15, line 39, after ‘State’, insert ‘and the Treasury jointly’.—[Mr. McNulty.]
4 pm
The Chairman: I remind the Committee that with this we are taking Government amendments Nos. 31, 32, 42, 44, 47 and 50 to 52.
The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): Before the clock so rudely interrupted me, I was explaining how, in substance, much of what this group of amendments does is simply to add “the Treasury” where at present the Bill says “the Secretary of State”, referring to the Home Secretary. It is a technical amendment in the sense that the clause concerns the duty to share information among those agencies and services that come under the purview of the Home Office—the police service and the immigration service—with, as can be seen in clause 31(1)(c), Her Majesty’s Revenue and Customs, which naturally comes under the Treasury. It is therefore appropriate that both the Home Office and the Treasury are involved in the duty to share information. All that the amendments do, in the main, is to extend to the Treasury all references to what the Secretary of State should or should not be doing, largely because Her Majesty’s Revenue and Customs is involved. It is terribly straightforward.
Amendment agreed to.
Mr. John Leech (Manchester, Withington) (LD): I beg to move amendment No. 119, in clause 31, page 15, line 43, leave out from ‘voyages’ to end of line 2 on page 16.
Subsection (4)(b) gives the Secretary of State wide-ranging further powers on what is described as “other matters”. The amendment would remove those “other matters” that the Secretary of State may specify. I should be grateful if the Minister indicates what those “other matters” could or would be.
I also seek further clarification. Under the new powers, different agencies would have a duty to share information rather than the power to share information. Given the wide-ranging nature of what “other matters” may be, does the Minister feel that there may be some confusion among the agencies as to what information they have a duty to share?
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Mr. McNulty: The agencies clearly hold intelligence information related to freight and travel that is not obtained under the powers specified in clause 31(4)(a)—the substantial part of the subsection—and which may be useful for the purposes of another agency or agencies. The amendment would preclude any of that information gathered under entirely different legal auspices outside the Bill’s scope. It would prevent any of the agencies sharing those data with other agencies, whether they were substantive enough to matter in terms of the pursuit of crime or of any other matter. It is overly limiting.
I suspect that the confusion arises partly from the legalese. “Other matters” does not refer generically to every other matter that anyone could possibly imagine. It means, as I understand it, other matters germane to the existent and statutory base of each and every one of those agencies. Given that the clause is all about the duty to share information above and beyond that alluded to in other parts of the clause, the amendment would limit things in such a way as to render the duty to share not quite redundant, but extremely restricted. I am pretty sure that that is not the intention. The hon. Gentleman is trying to narrow the clause from the perspective—albeit inadvertent—that it is far too wide at present. “Other matters” does not mean anything we fancy; the definition is much stricter than that.
Mr. Leech: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 31, in clause 31, page 16, line 2, leave out ‘may’ and insert
‘and the Treasury may jointly’.
No. 32, in clause 31, page 16, line 3, after ‘State’, insert ‘and the Treasury’.—[Mr. McNulty.]
Mr. McNulty: I beg to move amendment No. 33, in clause 31, page 16, line 17, at end insert—
‘(6A) An order under subsection (4) may not specify—
(a) a power of Her Majesty’s Revenue and Customs if or in so far as it relates to a matter to which section 7 of the Commissioners for Revenue and Customs Act 2005 (c. 11) (former Inland Revenue matters) applies, or
(b) a matter to which that section applies.’.
The Chairman: With this it will be convenient to discuss Government amendment No. 46.
Mr. McNulty: These amendments follow on naturally from the earlier Government amendments. There is an interface between the assorted powers and responsibilities of the Treasury and the Home Office with, on the one hand, HM Revenue and Customs, and, on the other, immigration services and the police. Amendment No. 33 inserts a new subsection in clause 31 to make it clear that the powers specified by the Secretary of State and the Treasury, jointly, as determined on the earlier amendment, should not apply to information collected by HM Revenue and Customs under the former Inland Revenue’s powers.
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When we are talking about borders, immigration and security, it is clear that the customs wing rather than the revenue wing of the new joint organisation has the germane data that we seek permission to share with other agencies. Government amendment No. 46 provides similar clarification in respect of disclosure to the security and intelligence agencies. Without wishing to provoke suspicion and cynicism, this is an extremely straightforward amendment with no tricks involved. I have no cards up my sleeve.
Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Humfrey Malins (Woking) (Con): This important clause deals with what is now a duty, rather than a power, on a number of people—the Home Office, the police and the Revenue—to share information. Many of us will have wondered over the years why we do not have a unified presence—a unified border force—at our ports. Indeed, it is my party’s policy to create a single border agency to replace what happens at the moment. When you or I land at Dover, Sir Nicholas—in my case, having come back from France with cigarettes; in your case, it is probably with other things—
The Chairman: Wine.
Mr. Malins: Thank you so much, Sir Nicholas. At Dover, we find first of all the police and then customs and immigration. They are all there with their different powers. It is not only my party that argues for a unified border force; large numbers of people in the Labour party do so too.
Mr. McNulty: Name them.
Mr. Malins: I am going to. Large numbers of people have considered the matter extremely carefully. Of course, I refer to the Home Affairs Committee report “Border controls”, which was ordered to be printed on 23 January 2001. That Select Committee was dominated by the Labour party and was chaired by Mr. Robin Corbett, now Lord Corbett. It contained seven Labour Members. I am not sure whether the hon. Member for Dover (Gwyn Prosser) was a member at that time.
Gwyn Prosser (Dover) (Lab) indicated dissent.
Mr. Malins: I think the hon. Gentleman wishes to distance himself from the report, which is not surprising if he was not a member of the Committee.
The Committee considered carefully a great many matters connected with border controls. I shall quote just one or two important paragraphs from its report. It said:
“It has been put to the Committee by those who have most direct experience of working with the government agencies at ports—the port operators and carriers—that we should consider combining those agencies into a single frontier force.”
The Committee went on to consider the pros and cons of doing that. I recall that very well: I was on the Committee at the time.
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We took evidence from a number of persons, including the Dover harbour board, which gave a direct statement as follows, citing an example of the nonsense that is created when three different agencies exchange information:
“I could give you a very specific example that happened not very long ago. An inbound family in an Escort van in Dover, legitimately [in] a white van . . . They had been on an innocent day trip and were passport controlled, as is normal, by immigration and were then selected by Kent Police Ports Unit for a check for some reason, unaccountably, and were asked to off-load the van. They did so, and then were told they could reload it and go—only to find that 10 yards down the road they were stopped by Customs who asked them to unload the van again, and equally found nothing. It was not a target, as far as I am aware, it was a cold pull on both counts . . . [It took] an hour, probably, against a target time of less than five minutes”.
The report went on to talk about information exchange and information sharing. It rightly pointed out—this is nearly five years ago—that information
“can be passed between the police, Customs and Immigration Service under legal provisions called statutory gateways. It is only legally possible to exchange information about specific cases. The Immigration and Asylum Act 1999, when fully implemented, will make it possible for bulk data to be exchanged between Customs and the Immigration Service. Customs are also seeking changes to legislation to make it possible for them to do the same with the police and other agencies.”
In taking that philosophy forward, the Minister has proposed a clause about the duty to exchange information.
The report also stated:
“Another example of lack of joined-up working are the powers of different officers on duty at ports.”
Dover has customs, immigration and police officers on duty, but all three agencies are not represented in some smaller ports. On the west coast of Great Britain, there are several ports where the only official presence is the police. Will the Minister comment on possible developments in that connection over the past four years? Are all the agencies now represented at all the ports that were not covered at the time of the report?
4.15 pm
Gwyn Prosser: If the hon. Gentleman had joined me in a recent visit to the port of Dover, he would have seen how inter-agency working had changed dramatically since 2001. The very officers with whom the hon. Gentleman discussed these matters then are now saying that there is far more integration; they sit in the same office and share the same databases. There has been a lot of movement; the system is working.
Mr. Malins: I am very grateful to the hon. Gentleman, who is a distinguished member of the Home Affairs Committee. He takes a great interest in these matters and I always respect what he has to say. He referred to the fact that there were three different agencies in the same office, which is the background to the issue. It is not surprising that the Home Affairs Committee recommended that existing border control agencies should be combined into a single frontier force. I hope that the Minister will tell us a little bit more about his thinking on that recommendation, made so long ago.
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I have one or two queries about the exchange of information. The agencies will now be under a duty to share information with each other. Perhaps the Minister will comment on the proposition that there needs to be a safeguard against fishing expeditions, which I have mentioned before—for example, one agency simply saying to another, pursuant to the duty under the clause, “Have you got anything we might be interested in? Let’s see what you’ve been doing.” I assume that a record will be made of all requests and that it will be a public document.
I wonder, although it is highly unlikely, whether the Minister has thought about whether someone who is the equivalent of the independent monitor in asylum cases might oversee the workings of the exchange of information scheme to see that all is correct.
All members of the Committee believe that it is important that agencies share information, which can be of the greatest importance to national security. Of course, the Minister will be the first to say that some information is not relevant. When the Revenue is involved there is a possibility of information that should not be passed on being passed to another body by a person who, rather zealously, takes their duties too seriously.
The breadth of the clause is again evidenced by the continued reference to the ability and duty to exchange information for “police purposes”. I again quote the section of the Immigration and Asylum Act 1999 that troubles me greatly because the final definition of “police purposes” after the obvious ones is
“such other purposes as may be specified”.
The vagueness of that definition leads me to wonder whether it would be possible for too much information to be switching around between the various bodies under the clause. It would have been so much better if the Government had listened to the Home Affairs Committee and to my party, as there would be only one body and the clause and the obligation to share information would be utterly redundant.
Mr. McNulty: I disagreed with what the Home Affairs Committee said about a single agency four years ago and I disagree with the Conservative party’s position now. However, the data sharing facilities and duties must be right and must work. I fully accept that, but a joint agency would lose too much.
Let us go back to Dover. Where would the authority of a single border force start and end? What would be the role of special branch, who have a special role—as their name implies—above and beyond simply the county force? Sometimes it is Kent’s own special branch; sometimes it works with other counties, and there will always be scope and the need for joint operations. We are trying to ensure that each agency brings in and uses its specific area of expertise as much as it can. I cannot think of how a single border agency could be drawn up that would capture in fullness the expertise of the immigration service on immigration, the Customs and Revenue people on customs, the county police and the local Dover police and their local knowledge germane to the port, and other special
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branch forces and the serious crime squad. It must be the case that if the intra and inter-workings of each of those agencies were brought together in an appropriate fashion, which the clause seeks to do, the sum of all the expertise brought by each of those agencies would be far greater than an individual border force. I remain to be persuaded, but that is clearly my view at present.
I will not go down the road of suggesting what you, Sir Nicholas, bring back or do not bring back from France or other forays on the continent. That is absolutely none of my business. What the hon. Member for Woking (Mr. Malins) does in his own time, by going over to deprive the Revenue by buying his cigarettes in France, is entirely a matter for him, not me. I shall not go down those avenues at all, but if he is going again—
Mr. Malins: I’ll bring you some back.
Mr. McNulty: Yes; why not?
It must be the case that the expertise of all agencies is far greater than that of a single border agency. I freely accept the substantive point that if that is the case, all the assorted data sharing facilities should be put on a statutory footing, rather than the less than statutory, informal position that we have now. We would need to be clear about who is in the lead in any specific operation. I agree with the hon. Gentleman that that would avoid a series of assorted targeted searches as someone proceeds through a port. My hon. Friend the Member for Dover is right that there must be scope for joint targeting or operations, and that if someone is coming through and there is a reason for stopping them, that should happen, but only once, whether it is by special branch, Customs or whoever else is instigating the target.
In Dover and some other southern coastal ports, in line with what we were suggesting with earlier amendments, we have moved the border—not physically, as we are not doing offshore searches of anybody. However, just the other week, I was over in Calais looking at the juxtaposed controls—where they get these phrases from, I do not know—which is English, or bad English, for our Customs people doing what they do best over in Calais, long before freight or passengers reach the UK, working exceptionally well with all the assorted security and police officials from the French state, our consular people and the equivalent département officials from the Pas de Calais and the town of Calais. It is working very well, and has been in place since the demise of Sangatte. If the hon. Member for Woking has not already been, I would encourage him to go, with some of his colleagues, and see in person the lorry searching, the passenger side and the real operation, which means that less is desired and more can be targeted on ports such as Dover once passenger or freight traffic lands in this country. I would facilitate such a visit.
I return to the original point: it is my duty to say, if we do not have a single border force, how can we knit together each of the agencies more appropriately for
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data sharing and all the other facilities? That is what we seek to achieve with clause 31. I commend the clause to the Committee.
Question put and agreed to.
Clause 31, as amended, ordered to stand part of the Bill.
Clause 32
Information sharing: security purposes
The Parliamentary Under-Secretary of State for the Home Department (Andy Burnham): I beg to move amendment No. 35, in clause 32, page 16, leave out lines 40 to 43 and insert—
‘(1) A person specified in subsection (2) may disclose information obtained or held in the course of his functions to a person specified in subsection (2A) if he thinks that the information is likely to be of use for a purpose specified in—’.
The Chairman: With this it will be convenient to discuss the following:
Government amendments Nos. 36 to 41, 43, 45, 48 and 49.
Amendment No. 100, in clause 33, page 18, line 1, leave out subsection (2) and insert—
‘(2) Before issuing a code the Secretary of State shall—
(a) consult the Information Commissioner
(b) after that consultation, publish a draft code
(c) consider any representations made about the published draft, and lay a draft code before Parliament.’.
Amendment No. 101, in clause 33, page 18, leave out line 7 and insert—
‘(4) The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—’.
Andy Burnham: Had the general election not intervened, the drafting of the Bill, given a little more time, could have been tidier. The purpose of our amendments in this group is to clarify and tidy the Bill’s structure. They will make the Bill’s relationship with other legislation that governs the security services more logical and sensible.
The original drafting of clause 32 allows for travel or freight information for security and intelligence purposes to be shared. The amendments give the border agencies a discretionary power to disclose travel and freight data to the security and intelligence agencies for specified purposes: national security, economic well-being and support in combating serious crime. The original provisions allowed the reciprocal sharing of data, but we can inform the Committee that those provisions are not necessary, because existing powers in the Security Service Act 1989 or the Intelligence Services Act 1994, which enable the security and intelligence agencies to disclose data to the border agencies for certain purposes, are sufficient. Therefore the two-way process does not need to be included in the clause, because the existing legislation—namely, those two Acts—allows for the transfer of data back the other way.
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As a consequence of the amendments, the code of practice on data sharing no longer applies to the clause. Amendments Nos. 48 and 49 remove references to clause 32 in clause 33, which relates to the code of practice.
Amendments Nos. 36 and 37 allow for information to be disclosed if it is likely to be of use for any of the purposes specified in section 1 of the 1989 Act or sections 1 and 3 of the 1994 Act. Those are the same purposes that I mentioned a moment ago. I hope you will agree, Sir Nicholas, that those are tidying amendments.
I shall now speak to the amendments that have been grouped with the Government amendments. I am sure that the hon. Member for Manchester, Withington (Mr. Leech) will want to make his own comments. It seems appropriate at this stage to put some of our thinking on the record. Amendment No. 100 would create a three-tier process for the code of practice for the one-way transfer of information.
The hon. Gentleman envisaged three tiers in that process: first, that there would be consultation with the Information Commissioner; secondly, that following consultation a draft code would be published; and thirdly, that the Government should consider any representations made about the published draft and lay a code before Parliament.
On each of the points that the hon. Gentleman raises, we can give him some comfort that steps have already been taken or will be taken, according to the Bill as drafted. We have already worked closely with the Information Commissioner on the production of the framework code of practice, which the hon. Gentleman may have had a chance to look at. On 13 October, we published an outline framework for a code of practice on data sharing, in accordance with clause 31 of the Immigration, Asylum and Nationality Bill, between the immigration service, the police service and Her Majesty’s Revenue and Customs under e-borders. I recommend that document—with its simple and snappy title—to the hon. Gentleman as a riveting read. It sets out the principles by which we are taking this process forward. I assure him that we have been working closely with the commissioner on its production.
The hon. Gentleman will know that the commissioner has responsibility for ensuring that the principles of the Data Protection Act are upheld, and we are mindful of those principles. The Home Office will continue to work with the commissioner’s office in the production of the subsequent documentation related to the clause.
4.30 pm
The hon. Gentleman’s second point was that a draft code should be laid before it is finalised. I refer him to clause 33(2)(a), which states that a code
“shall not be issued unless a draft has been laid before Parliament.”
I think that that takes care of the hon. Gentleman’s point. People would, of course, be able to make representations on the draft.
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With those assurances, we urge the hon. Gentleman to withdraw his amendments, although I will expect him to make further points in the course of the debate. The Government amendments to the clause are simply tidying and clarifying amendments to ensure that the Bill, if it is to become an Act, will work properly and fit neatly into the existing legislation that governs the activities and work of our security and intelligence services.
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