Borders, Citizenship and Immigration Bill [HL]

My Lords, we recognise that but, as the noble Baroness, Lady Hanham, pointed out, they are not accessible to the general public. When we look for advice from experts outside, as we normally do, we have to remember to send them copies of these letters so that they can see them. There may be a lot of other practitioners who do not get to see the letters but who would enormously value the advice that they give. The suggestion on the table is that perhaps the Minister could consider how they could be placed on the web so that they would be accessible to a much wider audience than simply this House. The Minister’s letter referred to Schedule 7 to the Terrorism Act, which allows an examining officer to question a person at a port or in the border area, to search the person or his possessions and to take his fingerprints or a DNA sample. This power may be exercised already under the Terrorism Act 2000 by a constable, an immigration officer and a customs officer who is designated for the purpose of Schedule 7 by the Secretary of State and the commissioners. So all immigration officers may conduct an examination under Schedule 7, whether or not they are designated under Clause 3(1), and the Minister could perhaps explain why he singled out this enactment in the letter. Perhaps it was because of the discussion that we had on 4 March, when the Minister said that a public consultation was being undertaken on how to bring the S and Marper judgment into effect and that he would put copies of the consultation documents, as well as the interim response to the European Council of Ministers, on the Home Office website. I looked on the Home Office website on Saturday evening and I could not see the material, still less anything about the sensible timescales that the Minister said would be attached to the process. I would be grateful if he would look at that mater. The point of raising the matter at this stage is that, as the Minister’s letter underlined, the taking of biometric samples under Schedule 7 to the Terrorism Act is not exclusive to the Special Branch, as in the example that I gave in Committee, but can be done by any immigration or designated customs officer. The fingerprints and DNA samples taken by all those officials are being stored indefinitely, contrary to the judgment mentioned. It is surely very unusual, if not totally unprecedented, to launch a public consultation on how to comply with the law, rectifying the violation of Article 8 of the European Convention on Human Rights. The samples have to be destroyed once it becomes clear that the person is not subsequently charged with any criminal offence; that is the principle to which we would invite the Minister to agree now. We are not objecting to Schedule 7 itself, but this may be the only opportunity that we get to point out, as the Minister has done so helpfully in his letter, that thousands of officials have the power to make ordinary passengers give them biometric samples, which are still being retained for ever, three and a half months after that was declared unlawful by the highest court in Europe. On government Amendment 14, Clause 7 deals with the customs revenue functions of the commissioners, which are exercisable concurrently by the Director of Border Revenue in relation to a customs revenue matter, as defined in subsections (2) and (3). I interrupt myself to say that we had a very encouraging response from the Minister when we suggested that there should be a schedule of definitions attached to the Bill, as in the draft Bill that was published in July 2008. It would be useful to know whether the Minister has given further thought to that since we discussed it offline, as it were. The functions in question are those conferred on the commissioners by, ""an enactment passed … before the end of the session"." The Commissioners for Revenue and Customs Act 2005 deals with those functions of the commissioners that had formerly been vested in the commissioners of Inland Revenue. If those functions did not relate to any customs revenue matter, they would not have been covered by this clause, and I am wondering why it is necessary to spell out the provisions of the 2005 Act that are included in Clause 7(7), when they must be sufficiently defined already. Is the 2005 Act the only legislation that deals with HMRC commissioners’ powers over both customs revenue matters and other functions, where it might be necessary to make the distinctions between the two? The Conservative amendments would insert new definitions of "customs revenue" function and "general customs" function into a schedule, but something has gone wrong with the quotation marks in the amendment. The terms defined should be plural, but no doubt this is how they were in the document circulated by the Minister—they were copied verbatim from a document that perhaps was not drafted very thoroughly. In the Bill, each of the terms is defined as a function exercisable in relation to the corresponding matter, conferred by specified enactments enumerated in the corresponding clause. The matters are then defined separately. The Conservative amendments condense these matters into two lists that are much shorter than the two lists in the Bill—as in the Minister’s letter but, no doubt, at the expense of some precision, as the Minister has said. For example, the customs revenue function list includes all excise duties, while some are purposely excluded in Clause 7(2)(e), such as lottery duty or pool betting duty, presumably because they have nothing to do with our borders. On reading the explanation in the Minister’s letter, I thought that it might be useful to have a Venn diagram showing the overlapping functions and responsibilities. We look forward to seeing the promised partnership agreement between UKBA and HMRC, but we would also welcome a visual presentation that might help to convince us that the complicated structure of Part 1 is unavoidable.