Clause 3 - Information recorded in Register
Identity Cards Bill
10:45 am

Jimmy Hood (Lanark and Hamilton East, Labour)

I remind the Committee that with this we are discussing the following amendments: No. 130, in clause 3, page 4, line 7, leave out subsection (5).

No. 131, in clause 3, page 4, line 9, leave out subsection (6).

No. 23, in clause 3, page 4, line 11, leave out 'consistent with' and insert 'necessary for'.

No. 132, in clause 3, page 4, line 13, leave out subsection (7).

No. 24, in clause 3, page 4, line 13, leave out from 'order' to 'unless' in line 15 and insert 'under this section'.

No. 188, in clause 3, page 4, line 14, leave out from second 'provision' to 'unless' in line 15 and insert

'that the Secretary is authorised to make by this section'.

No. 25, in clause 3, page 4, line 16, at end add—

'(8) Particulars relating to disclosure of information about an individual from the Register which falls within paragraph 9 of Schedule 1 must be retained in that individual's entry in the Register if that disclosure did not have the consent of that individual.

(9) In the case of particulars which are contained in personal data as a result of the requirement specified in subsection (8), the Information Commissioner shall, following consultation with relevant persons including the Commissioner established under this Act, publish criteria which specify the circumstances when such particulars can be removed from the Register.'.

No. 26, in clause 3, page 4, line 16, at end add—

'(8) No draft order containing a provision that the Secretary of State is authorised to make by this section is to be laid before Parliament unless—

(a) the Secretary of State has prepared and published a report containing a proposal for the making of such provision;

(b) the report sets out the Secretary of State's reasons for making the proposal;

(c) the report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications; and

(d) the draft order gives effect to the proposal so far as approved by both Houses.'.

No. 28, in schedule 1, page 40, line 18, leave out sub-paragraph (b).

No. 29, in schedule 1, page 40, line 30, at end insert

'and his ID card number, which shall be the same'.

No. 30, in schedule 1, page 40, line 31, leave out sub-paragraph (b).

No. 31, in schedule 1, page 41, line 16, leave out sub-paragraph (l).

No. 32, in schedule 1, page 41, line 19, leave out sub-paragraph (m).  

No. 33, in schedule 1, page 42, line 9, leave out sub-paragraph (g).

No. 34, in schedule 1, page 43, leave out lines 1 to 9.

No. 118, in clause 43, page 37, line 5, at end insert—

' ''Information Commissioner'' means the Commissioner established by the the Data Protection Act 1998 (c.29);'.

No. 119, in clause 43, page 37, line 11, at end insert—

' ''personal data'' has the same meaning as in section 1 of the Data Protection Act 1998 (c.29);'.

Ben Wallace (Lancaster and Wyre, Conservative)

I was drawing my remarks to a close at the end of the last sitting. It is important that the Committee recognise that amendment No. 34 is intended to tie down the Government on the purpose of the Bill. It was said that the database will be used to verify the identity of an individual presenting an ID card and that it will exist for that purpose alone. It will carry a certain amount of information, as described in clause 1, but it will also hold footprint information on credit reference and so forth. That will show the pattern of people's lives and behaviour in a way that goes beyond the purpose of the register according to how the Government originally introduced it.

The Minister said that only in limited circumstances will certain organisations or agencies be allowed to look at that extra footprint information. He assured us that they will not be allowed to browse through that information, but nothing in the Bill, or in the other relevant Acts that I have looked at, prescribes that focused purpose of those agencies by telling them, ''You can't browse through that information, but you must request it only on very specific issues.'' Such a statement does not exist; that is in the gift of the Home Secretary.

Clause 19, which addresses the other allowed uses of the register, says that the

''provision of information is authorised by this section where it is''

to ''the Security Service'', the ''Secret Intelligence Service'', GCHQ and the ''Serious Organised Crime Agency''. They will be allowed to look through the information if that is for the purposes of their function.

It is important to cross-reference with the Security Service Act 1989 to discover what is the purpose of the Security Service. Section 1 of that Act was amended in 1996, but subsection (3), which was not amended, states:

''It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom''.

That is a very general description. When the Labour party was in opposition, I remember that it accused the security services of using that function so as to listen to and monitor strike leaders during the miners' strike. I say to Members with misgivings that that Act and this Bill authorise the security services to look at information relevant under paragraph 9 of schedule 1. That is one of the functions provided.

Let us consider GCHQ's functions, as described in the Intelligence Services Act 1994. Section 3(1)(a) states that one of its function is

''to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to  obtain and provide information derived from or related to such emissions or equipment and from encrypted material''.

The point I am making is that those functions are widely drawn in these Acts. Therefore, a powerful individual in the guise of the Home Secretary is involved with the security services. He has the ability to authorise people to look at the information. In some cases, he is almost prevented from stopping them looking at it because they are allowed to do so by the very nature of the Acts that put them in place—the Intelligence Services Act 1994 and the Security Service Act 1989.

Therefore, if the Minister wants to put safeguards on the information, the best way to do so might be to remove the footprint purpose of the register—to remove it recording all the questions put to it—such that it still serves its purpose and still verifies the individual and their card against the database. Alternatively, he could come to this Committee or to the House with more detail on the times when he will allow those agencies or public authorities mentioned in clause 19 access to that information.

When, exactly, can those organisations have the information? I am not talking in terms of each case or just their general function. I am asking for what purpose, and when, can they do that. This should be done to safeguard people's civil liberties in that environment and to allow them to understand the situation. The Minister could add to the list limited circumstances in which other people will also be able to have access to the information.

This issue is the crux of the matter, which is why it is important to spend time on it. We are moving from the database being used for verification to its holding more than that. It will hold data on people's behaviour, traits and pattern. The Minister might want to come forward and say, ''No, we need it because it is about counter-terrorism. We make advantage from it.'' However, he should make that case, not hide it behind the central database of a register for verification. It is more than that. This is where the concerns about civil liberties lie.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Let me deal first with the lead amendment. I will then address some of, but not all, the subsequent amendments. Clause 3(4) provides that information

''may continue to be recorded in the Register for so long as it is consistent with the statutory purposes for it to be so recorded.''

Amendment No. 22, which we dealt with some time ago, would take out the words ''consistent with'' and replace them with the words ''necessary for''. Clause 3(6) empowers the Secretary of State to make an order adding to the information that may be recorded on the register where he considers, again, that it will be ''consistent with'' the statutory purposes to do so. Amendment No. 23 would change that test to one of ''necessary for'' statutory purposes.

One can only assume that the hon. and learned Member for Harborough (Mr. Garnier) is of the view that the amendments would impose a higher test than the one that is in the Bill for the retention of existing information and the addition of further information.   One also assumes that he seeks consistency with the fifth data protection principle, which states:

''Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.''

The second of the two statutory purposes—we always return to those—is in clause 1(3)(b). It is to provide

''a secure and reliable method for registrable facts about . . . individuals to be ascertained or verified wherever that is necessary in the public interest.''

The test in clause 3 of ''consistent with'' the statutory purposes must therefore be read in the light of the necessity test that is built into the statutory purposes. The net result provides no less protection than would a double necessity test. Furthermore, it is not inconsistent with the fifth data protection principle.

In other words, as I have said on previous occasions, one always has to return to the building blocks that permeate clauses 1, 2 and 3. The necessity test that the hon. and learned Gentleman seeks is in clause 1(3) rather than in clause 3.

Amendment No. 26, tabled by the hon. and learned Gentleman, would require a super-affirmative resolution for any orders amending schedule 1, whether they added or removed information. Amendments Nos. 130, 131 and 132, tabled by the hon. Member for Orkney and Shetland, would require further primary legislation if the schedule ever needed modification, as they would remove the possibility of modifying the schedule by secondary legislation.

Two further amendments, Nos. 24 and 188, would make any orders either adding information to or removing it from the schedule subject to affirmative orders. That would not be an effective use of parliamentary time. There is already suitable scrutiny to safeguard people's privacy with a balance of negative and affirmative resolution procedures and the requirement that information may be added only if it is consistent with the statutory purposes.

The statutory purposes are not there for fun or just to make the Bill's first three clauses consistent. They are a real test and everything that flows from them needs to be seen in that regard. We shall resist those initial amendments. Although I understand where they are coming from, we do not agree with them.

As for the footprint—the tail end of paragraph 9 of schedule 1—I do not agree with much of what was said by the hon. Member for Lancaster and Wyre (Mr. Wallace). With due apology, he was again using sloppy language. He talked about a credit reference. There will be no record on the database of someone applying for a credit reference. As paragraph 9 states, entries will record when there has been an attempt to verify. The hon. Gentleman talked about identifying people's traits and other elements.

Mr. Wallace rose—

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I shall not give way for the moment. The hon. Gentleman's argument is simply hot air and not sustained by the Bill in its language. His other   points about previous legislation are not terribly relevant because the Bill must be seen in the context of the statutory purposes that I have outlined. For all that he said about prior Acts of Parliament that establish security services or otherwise and that bring them into the open, that does not matter other than in the context of the statutory purposes under the Bill.

I am sure that what I am about to say is the wrong interpretation of the hon. Gentleman's argument, but it could really be about trying to limit the efficacy and efficiency of those services. I am sure that that is not what he wants to do. Functions are widely drawn deliberately because of the task and functions that we ask those services to undertake, and that is entirely appropriate.

Ben Wallace (Lancaster and Wyre, Conservative)

Of course, I concede the credit reference point, but I want to refer to the footprint made each time people present information for a public service, which they are required to produce, and when they are stopped by the police, register with a GP or attend a hospital and have their details verified. Each time a Minister changes which public services require identification to be established before a service is delivered and the remit widens, the footprint will be there.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

At the risk of boring the Committee, I must pull the hon. Gentleman up on his language again. Nowhere in the Bill is there a provision to be stopped by the police. So will he please not use language or ascribe provisions to the Bill that simply do not exist? Earlier, the hon. Gentleman said that the security services could look through the register. Again, that is not strictly correct. The Bill does not allow anyone to look through the register. We must get our language right.

The powers under clause 9 will provide information to the security and intelligence services when they request it from the register. It is like any other element in the verification process. There is not licence in the Bill for anyone to browse, fish or go through the register at length or in any way, shape or form. I hope that the hon. Gentleman will desist from using poorly informed examples or sloppy language to ascribe matters to the Bill that are simply not there.

Ben Wallace (Lancaster and Wyre, Conservative)

There is. Perhaps the Minister was being sloppy in his language by leaving out ''in line with their functions''. The Acts that set out functions, to which I have alluded, allow the security services to request the information in line with their functions. The functions are not specific, so the request could be in line with the function, so it will be order for the Secretary of State to request all information on individuals in a certain part of London. That will be in line with the functions. We could argue about whether that was browsing, focusing or whatever, but it is in line with their functions. The Minister left out ''in line with their functions''.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

That is actually the next line on my bit of paper, but that is by the by. We could not, by any terms, say that the provision allowed browsing. When the hon. Gentleman referred to earlier legislation, I said very clearly that we were putting   on a legislative footing that which was not on such a footing before—that is, the provisions relating to the security services. Everything in the Bill stems from clause 1, so whatever any other legislation says when ascribing functions to the security services—or any other organisation, state or otherwise—all that they can do in relation to the register is in the context of the statutory purposes of the Bill. That is the reference point: those statutory purposes, not any legislation that created an organisation in the first place. Everything in the Bill flows from statutory purposes.

As I was saying before I allowed the hon. Gentleman to intervene, the powers in clause 19 are to provide information. They are not a licence to go fishing or browsing; they are to provide information to the security and intelligence services when they request any information from the register that is needed to carry out the agency's functions—so, yes, he is right there—in terms of the statutory purposes of the Bill, and no more. It says that on the face of the Bill, right at the start. Clause 1 says what the Bill is about. All the powers and functions in the other 44 clauses that flow from clause 1 stem from statutory purposes.

Two things can happen in Committee: someone alights on a clause and does not read it in the context of the overall Bill—an easy mistake for any Member to make, experienced or otherwise—or someone alights on a reference from another piece of legislation, and looks at the Bill in the context of the old legislation and does not see the wider picture involving the new legislation. There is no facility in the Bill to allow police to stop people and ask for the production of their ID card, and there is certainly no licence for anyone to go fishing or browsing in the way suggested by the hon. Gentleman.

To dwell on what was said on behalf of the Liberal Democrats, I take the points made about affirmative versus negative procedure, super-affirmative procedure, and using primary legislation rather than anything else to alter schedule 1, but I simply do not agree.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

Before the Minister moves on to my amendment, and following on from the point raised by the hon. Member for Lancaster and Wyre, the Minister is right that there is no power to browse the register, but he must be aware that it is quite possible that, with a minimum of information, the security services could undertake a fishing expedition. I draw a parallel with the granting of warrants. In order to get a warrant for the security services to search a house, reasonable grounds for seeking the warrant have to be shown. Where is the ''reasonable grounds'' protection in this Bill? Who makes sure that the security services, or indeed any other service, is not using the power to obtain information without proper cause?

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

In the first instance, the Secretary of State, as I understand it. But if that is not the case, I shall certainly come back on the issue.

I accept the hon. Gentleman's points about process and how to change schedule 1, but I simply do not agree with them. We think that schedule 1 is fairly comprehensive, and do not want to add or take away   from it. In light of all the other safeguards in the Bill—again, it should be seen simply in its own terms—we think that the procedures in place at secondary level are appropriate.

On the necessity test that the hon. and learned Member for Harborough seeks under amendments Nos. 22 and 23, we argue that that is simply unnecessary, because clause 1 talks about what is necessary for the statutory purposes. That, and the point that we made about ''consistent with'', is the appropriate double lock that he seeks, rather than pursuing amendments Nos. 22 and 23. In that context, I ask him to withdraw his amendment.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I am grateful to the Minister for his arguments, but he has not wholly satisfied me. I fear that quite a lot needs to be done to reassure Conservative Committee members that what we have argued for is incorrect, mistaken or generally misplaced.

I shall start by paraphrasing a remark made by the Minister just now. He said that there was no power in the Bill to allow the police to stop people and demand their identity cards. That is broadly what he said, although I make it clear that I am not using his exact words. He is entirely right. If you look through the Bill from clause 1 to clause 45, Mr. Hood, you will not find any power given to a police officer to stop someone in the street and demand his identity card.

However, that police officer would not be using the Identity Cards Act to do that, but other Acts of Parliament that this Government have passed during the past few years, and possibly the common law. He will stop someone and ask, ''What are you up to? I have a reasonable belief that you are carrying drugs and that you are a criminal of some sort.'' He will then ask, ''Have you got your identity card on you? If you can show me that, I may be the better satisfied as to your bone fides.''

Let us not fool ourselves that this Bill provides the police with the power to stop and search; it does not need to. However, what we have been arguing and suggesting is that the Bill provides an excuse—a pretext—for the identity card and the information contained in the register that underlies it to become part of a routine process. That is not only access creep, but function creep, and the Government need to understand that we are concerned about that.

Nick Palmer (Broxtowe, Labour)

Clause 18(1)(b) states that it is unlawful for any person

''to make it a condition of doing anything in relation to an individual that the individual establishes his identity by the production of an ID card''.

It would therefore be unlawful for an officer to say, ''I will look on your behaviour more favourably if you can show me an ID card.''

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

If the hon. Gentleman reads clause 18 carefully, he will see that it states:

''It shall be unlawful in cases not falling within subsection (2)''.

He needs to bear that in mind. He may honestly and genuinely believe in what he says, but if he does, I think him naive. If he thinks that the police will not   make use of the identity card system and the data register to help them to be useful to the public—

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Why not?

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

The Under-Secretary asks, ''Why not?'' Well then, let us not pretend that this is not about access creep and function creep. We have agreed on that. At last the Committee has produced something of value—[Interruption.]

Jimmy Hood (Lanark and Hamilton East, Labour)

Order. I thought that I had made it clear earlier in our discussion of the Bill that I would not tolerate Front Benchers chatting to each other across the Committee. If anyone on the Front Bench wants to catch the eye of the person on their feet, they should do so by intervention. I hope that they will help me by not interjecting in debates in such a way in future.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

If the Under-Secretary wants to intervene, he can do so on his feet. I shall sit down while he intervenes.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I apologise, Mr. Hood, for having made an intervention in that way.

A moment ago, the hon. and learned Gentleman questioned whether we had any interest in making the register and the cards useful to the police. I refer him to clause 1(4)(b), which states that the Bill is

''for the purposes of the prevention or detection of crime''.

How on earth could the structures that we are creating not be of use to the police? Surely that is at the very heart of the Bill.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Of course they will be useful to the police. That is why the police will use the pretext.

The two Ministers need to have a chat outside. On the one hand, the Minister of State says that there is no power in the Bill that allows the police to stop and search to check identity and so forth; that is a paraphrase, not his exact words. He is right. The Under-Secretary asks, ''Well, what would be wrong with that anyhow?'' He is right too.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I am afraid that I did not say that. The hon. and learned Gentleman made a general statement about our intention to make these systems useful to the police to help them in their job. I referred him back to clause 1, which says that the scheme is about

''the prevention or detection of crime''.

That is entirely different from saying that the police will be given powers across the board to stop and search, and to demand production of a person's identity card. I hope that he understands that distinction.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Perhaps we are having a conversation at cross purposes. I agree with the Minister of State that there is no power in the Bill to allow the police to stop people and say, ''Let's see your identity card''. That may yet come; we have not seen what the 60 regulations will say.

The argument I am making to the Committee simply flows from the Under-Secretary's sedentary   intervention, ''Why not? What's wrong with that?'' This system will create a pretext for the police to stop people who currently are allowed to walk across the street without having to demonstrate who they are and that they have an innocent purpose. Of course, they will not say, ''I am stopping you because I have a power under the Identity Cards Bill.'' They will say, ''I am stopping you because I have the reasonable excuse that you are a criminal.'' That may coincide with one of the statutory purposes, but let us not fool ourselves: the Bill, if enacted, will, by virtue of clause 1 and all the other clauses that we have discussed, lead to function creep and to access creep into the register.

The Minister may have a fond hope that that is simply not true, but I predict that over the next 10 or so years there will be a measurable increase in police activity as a consequence of the Bill. They will rely upon things such as the Serious Organised Crime and Police Act 2005, the common law, the Civil Contingencies Act 2004 and the various anti-terrorist legislation that we have passed—or will pass—this year. Let us not fool ourselves that the Bill will do anything other than add to the pretext that the police will have for requiring people to show their identity cards.

Nick Palmer (Broxtowe, Labour)

Will the hon. and learned Gentleman give way?

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I shall, but the argument in which I have just been engaging is nothing of a diversion from the main thrust of the clauses. If the hon. Gentleman still wishes to intervene, I do not want to prevent him from doing so.

Nick Palmer (Broxtowe, Labour)

Is the hon. and learned Gentleman arguing that the police will have too many powers to stop people under other Acts or that if they are appropriately stopping people, it is desirable that it should be difficult for them to identify who they are talking to?

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I do not think I am saying either of those things.

Let us move on, because I am in danger of being deflected by the Under-Secretary.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

My hon. and learned Friend is having his time wasted.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I would never say that I am having my time wasted by Ministers, because I admire all that they have to do as Ministers of the Crown. If interrupting me is what they wish to do, I am here to be intervened on.

The hon. Members for Orkney and Shetland and for Stroud (Mr. Drew), whose admonition during the earlier debate I accept, were far from convinced in relation to how they anticipated their arguments being dealt with. I believe that the hon. Member for Stroud was correct when he expressed, before we resumed this morning, his concerns about the width of schedule 1. I am not sure that he has received any words of comfort in response to his request for closer definitions in schedule 1.

The hon. Members for Colne Valley and for Broxtowe (Dr. Palmer) have intervened both today and in the earlier debate. I am grateful to them for doing so, because it has helped us to tease out some   points that it was necessary to tease out. My hon. Friend the Member for Lancaster and Wyre has made a significant contribution to our debate on this aspect of the Bill.

I want to make it clear that in calling for a Division on amendment No. 22, I am using it simply as a device by which I can express my opinion—or ask the Committee to express its opinion—about some subsequent amendments relating to clause 3. I accept that amendment No. 22 is not the be-all and end-all of our debate; it just happens to be the first amendment in the group. So, I want the Government to understand that when I press it to a Division, I will be using it to introduce a Division on some more important subsequent amendments that we have discussed.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.