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

I beg to move amendment No. 178, in clause 19, page 17, line 10, leave out subsections (2) and (3) and insert—

‘(2)The provision of information is authorised in this section where it is—

(a)the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service, the Director of the Government Communications Headquarters, the Director-General of the Serious Organised Crime Agency, a chief officer of police; and

(b)it is—

(i)in the interests of national security; or

(ii)for the purposes connected with the prevention or detection of crime.’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments: No. 179, in clause 19, page 17, line 12, leave out “connected with” and insert “necessary for”.

No. 239, in clause 19, page 17, line 13, after “Service’s”, insert “current”.

No. 215, in clause 19, page 17, line 16, after “Service’s”, insert “current”.

No. 216, in clause 19, page 17, line 19, after “the”, insert “current”.

No. 217, in clause 19, page 17, line 22, after “Agency’s”, insert “current”.

No. 62, in clause 19, page 17, line 22, at end insert

‘for any of the purposes specified in subsection (2A).

(2A)The purposes specified in this subsection are—

(a)in the interests of national security;

(b)for purposes connected with the prevention or detection of crime; or

(c)for other purposes specified by order made by the Secretary of State.’.

No. 63, in clause 19, page 17, line 27, leave out

‘the prevention or detection of crime’

and insert

‘the detection of serious crime which shall mean any crime giving rise to an offence triable only on indictment’.

No. 180, in clause 19, page 17, line 27, after “of” , insert “serious”.

No. 64, in clause 19, page 17, line 27, leave out from “crime” to end of line 28.

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

I wish first to bring the Committee’s attention to amendment No. 178. Here, as with other amendments, I am concerned about the wide drawing of the clause. This amendment would bring the provision of information back to the purposes of the Bill under clause 1. For that reason, subsections (2) and (3) would be removed. The amendment would produce a tighter definition allowing for the provision of information to a chief officer of police

“in the interests of national security”—

that is fine; it is included in clause 1—or

“for purposes connected with the prevention or detection of crime”,

which is also similarly provided for in clause 1, or, as in the existing subsection (3)(c),

“for other purposes specified by order made by the Secretary of State.”

That wording does not sit easily; it has a certain lightness and there is insufficient specification. I do not, on a quick reading of clause 1(4), see an equivalent provision, although if any other Committee member can find one elsewhere in the clause I will stand corrected.

The newly worded subsection (2) would state:

“The provision of information is authorised in this section where it is ... for the purposes connected with the prevention or detection of crime.”

That is preferable to the version in the Bill, which states that provision of information should be

“connected with the carrying out of any of that Service’s functions”.

That wording is repeated in subsection (2)(a), (b), (c) and (d) in relation to the director general of the Security Service, the chief of the Secret Intelligence Service, the director of Government Communications Headquarters and the director general of the Serious Organised Crime Agency. Those purposes may be much wider—either now or at any time in future—than those of the Bill. It is more important that the purposes of the Bill are a determining factor in the information to be disclosed.

Amendment No. 179, which is probing, would change the definition, which refers to

“purposes connected with the carrying out of any of that Service’s functions”

I suggest replacing “connected with” with “necessary for”. The words “connected with” might be regarded as a loose, or tenuous, connection, whereas “necessary for” would provide a greater safeguard.

Amendment No. 180 is a stray that deals with amendments on the purposes of the Bill in clause 1. Earlier,I sought to amend the purposes to read “serious crime” instead of “crime”, but that battle was lost and this is a straggling soldier from that skirmish. I do not intend to press it to a vote.

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

Amendment No. 62, which stands in our name as well as that of the hon. Member for Orkney and Shetland, and amendment No. 178—the lead amendment tabled by the Liberal Democrats alone—are, broadly, two ways of looking at the same problem, as are the other amendments in the group.

In giving the Secretary of State power to do things without the consent of the individual, particularly when such things are being done without their knowledge, we should restrict as best we can, and within the confines of common sense and the national interest, the Secretary of State’s remit. Clause 19(1) states:

“The Secretary of State may, without the individual’s consent, provide a person with information recorded in an individual’s entry in the Register”.

The bits that we wish to amend in subsection (2) show us where that information might go. On one level, there is no reason to complain when the information on the register is provided to the security services, the intelligence services, GCHQ or the Serious Organised Crime Agency. There is a perfectly   acceptable and understandable reason for information being provided to those agencies—or agency heads—for the statutory purposes set out in clause 1.

If we are to hand over to the Secretary of State—even though unelected officials rather than that Cabinet Minister will deal with this administrative aspect—those powers to share information about us with the secret services without our knowledge and consent, we must be sure that they are doing so properly. The only way we can do that is to ask the Government to assure us, by way of accepting the amendments, that that is likely to happen.

I will explain further. Clause 19(2)(a) states:

“The provision of information is authorised by this section where it is—

(a)“the provision of information to the Director-General of the Security Service for purposes connected with the carrying out of any of that Service’s functions”.

I know what the policy behind that provision is and I understand what it is for, but

“any of that Service’s functions”

could, in the wrong hands, mean more or less anything. It could allow an indolent or rogue official, acting for the Secretary of State or the director-general, to use the powers in an unconstitutional and damaging way. I will not repeat the same point in relation to the other paragraphs, because the same arguments apply.

We need to be assured that

“any of that Service’s functions”

means any of its functions in relation to securing the national interest as described in clause 1(4), which lists

“(a)in the interests of national security;

(b)for the purposes of the prevention or detection of crime;

(c)for the purposes of the enforcement of immigration controls;

(d)for the purposes of the enforcement of prohibitions on unauthorised working or employment; or

(e)for the purpose of securing the efficient and effective provision of public services.”

Some of those might not be relevant in terms of clause 19(2)(a).

The provision should be used only and expressly for those purposes. It should not be used for any other interesting exercises that the various security chiefs or agency chiefs may find it convenient to enter upon, or any other given purpose. A Minister might say that it is obvious that, if one marries up clauses 1 and 19,

“any of that Service’s functions”

is confined by clause 1, but we are dealing with a Bill that will simply enable the Secretary of State to do things that we do not yet know.

We have not seen the statutory instruments, the code of practice or the guidance to be issued—for example, to the director-general of the Security Service by the Home Office. It is important that at this stage we get at least oral assurances from the Government that the activities of those unaccountable agencies—[Interruption.] They are accountable to Parliament via the politicians who head them up, but are unaccountable in the sense that we cannot cross-examine them day by day. We do not see them. We do not know necessarily—perhaps for good reason—what they are up to all the time.

Ben Wallace (Lancaster & Wyre, Conservative)

To return to an earlier point about paragraph 9 of schedule 1, there was a debate in which the Minister of State said that reference to “any” of the functions of the security and intelligence services did not mean that browsing would be allowed. In respect of the word “any”, the amendment to which the hon. Member for Orkney and Shetland alluded would go a long way towards closing down part of the issue. At the time, the Minister said that the functions of the security services and of all other the agencies were confined to those that passed the necessity test in clause 1.

In considering whether to let the clause stand part of the Bill, we Opposition Members should examine what the Minister means, because “any” of the functions are permitted in the interests of national security. National security is in the necessity test of clause 1, so the services would be allowed to carry out any of their functions, and that includes—I shall say the word, because I know that the Minister of State will enjoy it—browsing. If something is in the interests of national security, it is, according to my reading, permissible under clause 1(4)(a), which says

“in the interests of national security”.

The fact that we are talking about “any” of the functions is important. If the Government returned to the issue and were more focused about when a request for information could be made, that would help. In an earlier sitting, the hon. Member for Orkney and Shetland said that, in other circumstances, the services will submit a warrant or a request to a member of Government before the functions—whatever they are—act on individuals, or at least in certain circumstances. It is important that the Minister recognises the fear about the word “any”.

I know that I will be attacked, as I was earlier, on the basis that I am trying to limit the capabilities of the security services or hamper their abilities. I am afraid that that is precisely what I am doing—on this issue. It would be easy to allow the security services to lock everyone up. Of course it is the role of Government to limit the functions of the security services when those functions work against the freedoms of our society, and of course we should limit how far the security services can go. The amendment would introduce an element of saying, “That is too much.” The security services have plenty of apparatus at their disposal already, before they go into our register.

When the Minister talks about “any”, will he provide some clarification so as to persuade me why I should not support the amendment tabled by the hon. Member for Orkney and Shetland, as it at least tries to give a bit of focus on the ability and powers of the agencies?

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

This has been a useful debate. With respect to the hon. Member for Orkney and Shetland and the hon. and learned Member for Harborough, it is absolutely right that the Committee should give careful thought to this part of the Bill, because the   issue of providing information without consent requires careful balancing of rights. However, in creating a national identity register, we should give the services that protect the public proportionate access to that register. The clause as drafted does that. I will deal with the amendment specifically, but first I should say that it is right that the services should have the access that they need.

To pick up on a comment made about me by the hon. and learned Member for Harborough, I may be a saloon bar pundit in some of my thinking, but I think that, at this particular time, our constituents would expect us to make everything available to the police and security services if it was in the interests of national security, as long as provision for that was clearly laid down in statute, as approved by this House and the other place. That is the background. I accept that the point made about the balance is important; we must and should get that right in the Bill.

My hon. Friend the Minister of State has made my first point many times. The information on the register is held in confidence: there is no open access and no ability to browse through the register. However, as I have said, it is right that the security services and the police should be able, on request, to access information for the purposes spelt out in the clause.

Amendment No. 178 would limit the provision of information without consent to the security services, the Secret Intelligence Service, GCHQ, the Serious Organised Crime Agency and the police to circumstances in which the provision of that information was

“in the interests of national security or for the ... prevention or detection of crime”.

The amendment would narrow the grounds on which information from the register could be provided.

I would be the first to say that those two purposes would be the overwhelming reasons used for seeking information from the register. Opposition Members are right to pull out those two points as pivotal and crucial, but I ask whether it would be wise to limit the information that can be provided to those agencies in respect of those two purposes.

Subsection (2) limits the information that can be provided to the security and intelligence services to purposes connected with the carrying out of their functions. That brings me to the legitimate points raised by the hon. and learned Member for Harborough. He will see that paragraphs (a) to (d) of clause 19(2) are about the specific functions of those services; paragraphs (c) and (d) relate to GCHQ and SOCA respectively. I hope that that answers his question about the purposes for which the information would be sought. He will know, for instance, that the Security Services Act 1989 lays out the functions of the Security Service. I shall list them for the avoidance of doubt: protection of national security, support of law enforcement agencies in the prevention and detection of serious crime and safeguarding the economic well-being of the United Kingdom.

The functions of the service go more broadly than the amendment tabled by the hon. Member for Orkney and Shetland. The existing limitation to the purposes   of each organisation is intended to ensure that information is disclosed only to bodies with a legitimate public interest in having it. The statutory purposes of all the bodies listed in subsection (2) were quite properly laid down by this place. Those purposes have been scrutinised and approved by Parliament. Parliament has agreed those bodies’ functions, which are what we as representatives of our constituencies want them to carry out on our behalf.

The question that I pose to Opposition Members is: why we would limit the purposes for which such bodies could receive the information to only part of their functions? That does not seem sensible, and it would send a conflicting message. I make no bones about it: our purpose in creating a national identity register is to help those agencies do their job.

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

I am sure that what the Under-Secretary says is perfectly sensible. Will he help me with amendment No. 64, which he may have been coming to anyway? The amendment deals with the deletion of subsection (3)(c), which reads

“for other purposes specified by order made by the Secretary of State.”

That is deliciously vague. Can he help us with that? Although I see that there is—or may be—a perfectly sensible reason for not wanting to restrict the secret services in their carrying out of particular functions so long as we have, or somebody has, some idea of what those functions are, I am less sanguine about that paragraph.

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

I shall come to that point, but I want first to finish my point about the statutory functions of the organisations listed in subsection (2). That picks up on the contribution made by the hon. Member for Lancaster and Wyre, who has more experience of the security services than me. Of course, it is not our intention to allow irresponsible or improper use of the data or for them to be used in an unaccountable way. I think that the idea that a certain unaccountability is attached to the services was mentioned a number of times. My view is that rather than limit the purposes for which those agencies can receive or use information, we should ensure that the information provided to them is authorised properly and has independent oversight, so that there is some accountable oversight of the way in which the register is being used.

The Bill provides for that. I refer the Committee to clause 23, which lays out the rules under which the powers in clause 19 should be used. Clauses 24 to 26 provide for independent oversight by either the national identity scheme commissioner or the intelligence services commissioner. I understand the reasons why Opposition Members have tabled these amendments. I hope that they will be reassured on that point.

Let me move on to subsection (3) and the amendments tabled by the hon. and learned Member   for Harborough. As he will see, the police service is treated differently with respect to the clause. Subsection (3) permits information to be provided to a chief officer of police where that information is

“in the interests of national security ... the prevention or detection of crime; or ... for other purposes specified by order”.

If I understand the hon. and learned Gentleman, that is the area that he is most concerned about. We have taken this approach because the police have common law as well as statutory powers and do not have a set of statutory purposes in the same way as the organisations that I have been talking about. I refer members of the Committee to the similar approach taken in the Immigration and Asylum Act 1999.

Amendment No. 64 would remove the ability to specify in an order additional purposes for which the police could have information provided to them. I can already give the hon. and learned Gentleman some reassurance. He will see that the beginning of subsection (3) relates to

“information not falling within paragraph 9 of Schedule 1”.

That is effectively the audit trail. We are talking about a lower level of access to begin with. Perhaps that goes some way towards reassuring him.

The police quite rightly undertake work that would not be classified as preventing or detecting crime or protecting national security. They carry out functions leading to the performance of a wider service to the public, as we saw this week when the police service performed unbelievably harrowing work in identifying the bodies from last week’s tragedy. That work is not necessarily strictly limited to the prevention and detection of crime or to the protection of national security. As well as identifying people who have died, they are involved in work that entails tracing missing or vulnerable people who may be in danger. The functions of the police are broader than the prevention and detection of crime and the protection of national security. In that sense, it is sensible to allow them to have a broader scope for using information from the register.

Ben Wallace (Lancaster & Wyre, Conservative)

I suppose the dispute is not about the other functions of the register—the fuller functions relating to identity and addresses. We are talking about the paragraph 9 information. The Under-Secretary has referred to one issue—the harrowing task of identifying victims—but it would be interesting to have a fuller picture of those other specified areas. No one is objecting to the other information; it is just the paragraph 9 information that we are asking about.

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

I think that I can give the hon. Gentleman that reassurance. The clause gives flexibility to consider functions that could be added. He will know that those functions would be added by parliamentary order. If the powers were to be extended, the necessary provisions would come before Parliament and be subject to the negative procedure.

Subsection (7) was added in response to concerns expressed in respect of the previous Bill. The order-making power can be used only to authorise provision of information where that

“is necessary in the public interest”,

as that is defined in clause 1(4). The hon. Member for Orkney and Shetland was concerned about that. Subsection (7) explicitly links the use of the powers in the clause before us to the definition of public interest in clause 1(4).

Amendments Nos. 239 and 215 to 217 would add the word “current” to the references to the functions of the security services in clause 19. That would not make any difference because the functions of the services would in any event have to be interpreted in light of what their functions are as currently laid out in the relevant statutes. The addition of the word “current” would not enhance the Bill in any way. If the functions of the security services as set out in the Security Service Act 1989 were amended, then the new functions would govern their use of this information. I hope that the hon. Gentleman understands that there is a check and a balance there. The statutory purposes would be changed only by Parliament, and that would have a knock-on effect on this clause.

What about amendment No. 63? Did the hon. and learned Member for Harborough not want that to be dealt with?

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

I did not deal specifically with that amendment because it was grouped with other amendments. The Under-Secretary can speak to amendment No. 63 if he wishes to do so, but the arguments that he has advanced would apply broadly to it.

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

I am grateful to the hon. and learned Gentleman for those remarks. We would not want to limit the definition of a crime to a “serious crime” that gives rise to “an offence triable only on indictment”. As has been discussed, that would have a high threshold. It would seriously limit the usefulness of the register to the police, as they could not seek even basic information from it in relation to a person arrested for an offence, unless it was an offence of high order triable only on indictment.

Amendment No. 180 would also permit information to be provided to the police only for purposes connected with a serious crime. The law already allows the police to take fingerprints and a DNA sample from someone who has been arrested for a recordable offence in order to identify that person. The law also allows the police to hold that information. It would be very odd if, having created the national register, we were to limit the police’s access even to basic information from it—let alone to more sophisticated information such as DNA. We have no intention of tying the hands of the police in that way.

As I have tried to address in detail some of the legitimate concerns that have been raised, I hope that the hon. Member for Orkney and Shetland will seek leave to withdraw the amendment.

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

I thank the Under-Secretary for that thoughtful and detailed response. However, there were moments when he betrayed an attitude that clearly distinguishes the Government’s position from that of others—and certainly from my position. At one point, he said that people will ask why we should limit the purposes for which the security agencies may use the information that they obtain under the Bill. That is a very interesting attitude, which says that the Government, starting at the top and looking down to the people, are entitled to demand that information. The answer to his question, which I know was supposed to be rhetorical, is that it is there because people have consented to provide it under certain conditions about its being used in the interests of national security and for the detection and prevention of crime, the prevention of illegal working and so on.

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

I showed that attitude because I meant to do so. I make no apology for saying that the agencies should be given easy access to that information. The hon. Gentleman will know that they currently have access to information held in a range of sources, so it is not as if we are talking about a whole new field of operation. We are simply saying that they will have access to a high standard of identity verification and to a higher quality database than at present. I cannot see why any Member of this House should have a problem with that.

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

As I said, the matter comes down to the purposes for which that information is provided to or may be sought by the agencies. Those purposes could go beyond those for which information was originally given in the first place. It is almost a question of my consenting as an individual to give information for certain purposes and not thereafter wanting to lose sight of what happens to it.

The Minister spoke about proportionate access. He said that at this time—presumably, he was speaking in the light of events a week ago today—making information available should be in the interests of national security. The amendment would still make such availability allowable in the interest of national security. That is one of the two bases—the other is the prevention and detection of crime—on which we would make information available. He said that it was accepted that other aspects might be covered by those bases. I presume that he means, for example, that the security services might be interested in enforcing immigration controls. Their interest in that area, however, would surely be covered by the rider of the prevention and detection of crime or of the interests of national security, as would the enforcement of prohibitions on unauthorised working or employment. Again, criminal offences are attached to that purpose, and it might even be said to be enforced in the interests of national security. That strikes at the heart of the difference.

The Minister said that the statutory functions of at least one of the agencies—I did not get a note of it—also covered the economic interests of the country. I am not entirely comfortable with that, but will consider it when I head off to France in a few weeks’   time. My gut instinct, however, is that that is perhaps too wide, and that it goes much wider than the purposes in the Bill. In any event, the Bill uses the words “current functions”, and if they are to be modified at some later stage, perhaps in relation to the Civil Contingencies Act 2003, of which we have recently heard a great deal, so that information can be obtained without anybody necessarily being aware of it or without their consent being obtained, the issue would certainly be much wider.

We have had an interesting debate and I am grateful to the Under-Secretary for the way in which he has responded. I wish to return to the matter at some later stage in our proceedings, and for that reason alone, I beg to ask leave to withdraw the amendment.