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

I beg to move amendment No. 77, in clause 22, page 20, line 3, at end insert—

‘(da)any disclosure of information which results or would result in interference with an individual’s private and family life is proportionate, and is for the purpose of—

(i)the protection of public safety or public health, or

(ii)the protection of the rights and freedoms of others;’.

The amendment would add to clause 22 a reference to the requirements of the European convention, by implication if not expressly. No doubt the Government will say that such a reference is implied anyhow. The amendment also refers, again by implication, to the Civil Contingencies Act 2004 and the Regulation of Investigative Powers Act 2000.

I will set the amendment in context. We are dealing with the passing of information to a public authority without the consent of the individual. “Public authority” is, for the purposes of the Bill, defined by clause 43, on general interpretation, as having

“the same meaning as in section 6 of the Human Rights Act 1998”.

I was going to take the Committee directly to the Human Rights Act 1998, but, as we discussed a couple of weeks ago, a public authority comes to be defined not so much by its name as by what it does. For example, while the BBC is not, for some purposes, a public authority, for other purposes it is.

One can think of any number of examples in which, when making a private contract, a body is not a public authority, but, when it is doing something that affects the individual citizen, it is a public authority. We need to be careful about accepting at face value the definition in the general interpretation clause about what a public authority is.

I also have a complaint that, as before, the Government are requiring Parliament to give them unspecified and vague powers. To see that, one has to look only at clause 22(1)(b), which says that

“the information is of a description specified or described in an order made by the Secretary of State”.

We have not seen those orders. I do not suppose that we will get see them in time for consideration on Report. I doubt that we will see a definition on Third Reading. I doubt that even the other place will receive a definition that would satisfy a reasonable reader when they discuss the Bill later in the year or early next year.

Although “public authority” is defined by section 6 of the Human Rights Act, the definition is not specified or described here, nor is the information referred to in subsection (1)(d). Therefore, it seems to us important that the Government should explain themselves so that, to refer to amendment No. 77,

“any disclosure of information which results or would result in interference with an individual’s private and family life is proportionate”.

That is the individual’s article 8 right under the European convention.

That disclosure of information must be

“for the purpose of the protection of public safety or public health”.

That is my Civil Contingencies Act point. The definitions of public safety and public health in the Civil Contingencies Act are remarkably wide.

Disclosure of information could also be for

“the protection of the rights and freedoms of others.”

Again, under a number of Acts of Parliament passed in the last half dozen years, all sorts of powers are given to all sorts of people, no doubt for good public policy reasons. However, when mixed into the bowl of the Identity Cards Bill, concerns of private rights against the state come to mind.

I want to be assured by the Government, not just by implication and not just because the Secretary of State has rubber-stamped the front of the Bill with his belief that it complies with the Human Rights Act 1998. I have seen that happen many times and I have seen it challenged. I have seen individual aspects of Bills, or of   clauses of Bills, fall foul of the Human Rights Act. I want to be assured that the Government have in mind the rights of the individual and the interference that could be done to the rights of the individual, particularly in relation to his family life and his private life. That is described in our amendment.

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

I hope that I can deal quickly with the amendments. The hon. and learned Gentleman complained earlier that the Government were not listening to some of the concerns. He will know that when the Bill was last debated in Committee there was a fairly detailed discussion on the clause and the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), gave a commitment to consider the concerns and to give further thought to the clause. I hope that the hon. and learned Gentleman will be reassured that the clause has been improved in that respect and that the Government have responded to some of the concerns put to the then Minister by the hon. Member for Woking (Mr. Malins).

The clause is more narrowly drawn than it was. I shall mention some of the ways in which it has been improved. As the hon. and learned Gentleman knows, although we expect most of the checks on the register to be done with the consent of the individual, there are circumstances where we will allow them to be done without consent—and we have been discussing those today. However, once the scheme is in operation, it is right to keep open the possibility that there may be other situations in which it becomes necessary, in the public interest, to provide information to other public bodies. It would be wrong to list those bodies in the Bill now and wrong to require further primary legislation as the logical extension of the measure, which is why the clause is drafted as it is.

It might help Committee members if I give a few examples of how we envisage the power being used. For instance, it might be sensible to allow local government to have access to the information. The hon. and learned Gentleman knows that local government administers the payment of housing benefit. In fraud investigations it would be sensible, from its point of view, for it to have access to the register. The fire and ambulance services could also be beneficiaries of access when verifying identity against the register following a major accident.

My hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) raised the possibility that the register may, at some point, be used for electoral registration. In future, particularly in respect of measures to combat electoral fraud, the national identity register could provide a sensible way to maintain the integrity of the electoral register and tackle, nay eliminate, electoral fraud.

There are circumstances in which it is sensible, for good public administration, for us to extend the bodies who could benefit through secondary legislation, with the key proviso that Parliament decides that it is necessary to do so.

The power in the clause is subject to the affirmative order-making procedure. An organisation could not be added without parliamentary approval. That was   added after the previous discussion—it was to be done under the negative procedure before. The Government have listened to the concerns that were expressed previously and have strengthened the Bill in that way. The authorisation procedure provided for in clause 23 would be subject to applicable oversight arrangements under the national identity commissioner.

The power was significantly narrowed during the parliamentary progress of the Bill in the previous Session and further safeguards have been added. The information in paragraph 9 of schedule 1 is now excluded. Information can be provided only to bodies that are public authorities under the Human Rights Act 1998. That is spelled out in the definitions contained in the back of the Bill. A further significant safeguard has been added to this version of the Bill: subsection (2) now provides that the order-making power can be used only when the provision of information is necessary in the public interest, as defined in clause 1(4).

Amendment No. 77 would insert a requirement for any provision under clause 22 to be proportionate in its interference with an individual’s private and family life and to be

“for the purpose of ... the protection of public safety or public health, or ... the protection of the rights and freedoms of others.”

Nobody in the Committee would have any objection to those reasons, and I understand the hon. and learned Gentleman’s concern. However, I reassure him that the amendment is unnecessary because of subsection (2) and the full application of the Human Rights Act to the Bill. Under article 8 of the European convention on human rights, a public authority must not interfere with a person’s right to a private or family life except in limited circumstances. Those include when such interference is

“in accordance with the law ... in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

That is a detailed list. However, we are confident and can give the hon. and learned Gentleman the assurance that the Bill fully complies with the Human Rights Act. His amendment, which lists the circumstances in which information may be provided, is more limited than the provisions of the ECHR. We believe that agreeing to it could mean that the scheme was not able to maximise its benefits.

The amendment would exclude the ability to provide information without consent to any additional organisations when that was in the interests of national security, economic well-being or the prevention or detection of crime. That would mean that we might not be able to provide information to local authorities for fraud-prevention purposes, for example.

I hope that Opposition Members will accept that we listened to the concerns that were expressed by their Front-Bench team in the previous Session. The safeguards provided under the subsection have been significantly strengthened and the subsection’s scope has been significantly narrowed. I do not think that Opposition Members need fear anything from the bodies that we have in mind. As I say, local   government is an obvious example of such a body, but the information might also be useful to the fire or emergency services.

The possibility of using the register in respect of electoral registration should be considered by Members on both sides of the Committee, given the number of people who currently fall off the electoral register. My hon. Friend the Member for Sheffield, Attercliffe made that important point.

For all those reasons and because of the final safeguard of the House deciding whether the power would ever be invoked, Opposition Members can feel reassured that they have been listened to and that the clause includes the necessary safeguards, given the Human Rights Act and the access to information provisions. I ask the hon. and learned Gentleman to withdraw the amendment.

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

My hon. Friend the Member for Newark will explain in a minute how satisfactory we think the parliamentary oversight in this clause. However, I am getting more and more worried as the Bill progresses. The Under-Secretary says that it “might” be sensible to let local government or the fire and ambulance services have access to the information. It might be, but we ought to be told whether that is or is not Government policy and whether it is or is not intended that the Bill should cover that.

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

Perhaps the hon. and learned Gentleman should have listened to what I said. He will be told, because the House will decide whether a body will be included. It is not for me to dictate which bodies could be included; I simply gave him some examples of how the provisions in the Bill might logically be extended to provide for good public administration. However, ultimately, the House would decide whether that power was ever invoked.

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

I want the Under-Secretary to understand me. I am not making a remark or advancing an argument that is personal to him. I am concerned, on behalf of the Opposition and the citizens whom I represent, about the growing activities of the state. He is wearing the uniform, metaphorically speaking, of a Minister. As far as I am concerned, he represents the state and it is up to the Government, who, under our system, present drafted legislation to Parliament for approval, to explain to the Committee what they have in mind. If they do not have anything in mind, that does not prevent me from complaining that we are passing legislation in a vacuum.

I know that the Government say that there will be a statutory instrument before Parliament in due course —we shall discuss later whether it can be properly overseen—but that may not happen for 18 months or two years. In the meantime, as a Member of Parliament, I am required to give the Government the power to do things that they have not necessarily thought about. If they have thought about those things, they are not prepared to tell us in sufficient detail how their thinking has developed.

The Government must understand that problem if they are to understand the genuine concerns of the public about how Parliament is required to give the Government power. That power must be accountable to the public through Parliament and, if the Government have no idea of what they intend in the clauses, we are all the poorer. I appreciate the arithmetic of the parliamentary situation but that does not prevent me, and should not inhibit me, from making such complaints. In the meantime, I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 78, in clause 22, page 20, line 15, at end add—

‘(4)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.’.

This amendment continues the movement that we started by tabling amendment No. 77, to which my hon. and learned Friend the Member for Harborough has already referred. Amendment No. 78 refers once again to the whole business of parliamentary approval for what the Government suggest in the Bill. The amendment would simply add a new subsection (4).

I followed closely what the Under-Secretary said about the previous amendment. I was interested to hear that we won some small gains during the last debate on the Bill and I trust he is prepared to give further ground on this amendment for the simple reason that we know the power to disclose without consent is theoretically extended without limit under the clause.

Regardless of the fact that approval is required for regulation, many of us remain extremely worried by the fact that the Home Secretary has essentially written himself a blank cheque. It is difficult to imagine a situation under the clause in which disclosure of information on the register might be justified. On top of that clauses 19 and 21 are already extremely broad. I would have thought that the scope offered by those two clauses was enough.

The amendment is very simple. It is designed merely to ensure that parliamentary approval occurs in order that the power to authorise other uses of information under the clause is scrutinised by both Houses. I could go on, but time forbids. I hope that my point is clear and that the Under-Secretary agrees to the amendment. I am interested to know his views.

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

Briefly, I added my name to the amendment for the reasons already outlined by the hon. Gentleman. It seems that we have had vagueness heaped on vagueness, and broadness broadened by broadness.

The amendment would put an important check on the manner in which the powers could be extended, but there is a slight irony in the fact that the hon. Gentleman would provide it by way of the so-called super-affirmative procedure. The Committee is aware that I have severe reservations about its efficacy. Ironically, it might even be argued that, by borrowing one of the mechanisms devised by the Government, the official Opposition have managed to produce what would be regarded by some—though clearly not by you, Mr. Hood—as a wrecking amendment.

It is important to have a measure of proper parliamentary scrutiny of the inclusion of further bodies under the provisions, which already include a very broad range of powers. I shall be interested to hear from the Under-Secretary, not least to learn whether he can give any reason why the super-affirmative procedure cannot be made to work in this instance.

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

Opposition Members have said that the amendment would ensure that bodies were designated under the powers through the super-affirmative procedure, rather than the affirmative. We have come some distance towards the hon. Member for Newark, but I am going to disappoint him, I am afraid, as we shall resist going the extra mile and using the super-affirmative procedure, partly because we feel it would represent inappropriate parliamentary scrutiny of what is proposed.

The super-affirmative procedure would be right for powers to do with compulsion, because that would directly affect every citizen of the country. It would, obviously, be a major change. We believe it would be right to use a procedure involving that level of scrutiny in such a case, notwithstanding our exchanges on whether that procedure, as currently conceived, is a workable and effective solution. We endeavour to get back to the hon. Member for Orkney and Shetland on that point.

Before going into detail, I should say to the hon. Member for Newark that we did not just elevate the check in the clause from the negative to the affirmative procedure. As he knows, subsection (2) was also added, which directly links any order made under this part of the Bill to the public interest test. We also narrowed the provisions by taking out the measures giving access to the information relevant to paragraph 9 of schedule 1. He will see that that is listed under subsection (1)(a). So, in many ways, we have limited the scope of the clause in respect of comments from Opposition Members.

To pick up on the comments made about the previous clause by the hon. and learned Member for Harborough, there might be some very sensible reasons for wanting to use the powers—reasons behind which no one need fear anything other than good intent. Local authorities administer public benefits, such as housing benefit and council tax   benefit. Clearly, if a register exists that enables them to carry out those obligations to a higher standard and with a higher level of identity proof, we should logically let them use it. It would not make much sense to take on the expense of creating the register and not give other public bodies that may suffer from identity fraud access to the register. That would be perverse.

Another example might involve the emergency services, be it the fire or the ambulance service. Such a service might seek powers to identify people at the scene of accidents. If it emerged that that was a sensible use of the register and a request was made for that information, all of us, as parliamentarians, would have a duty to listen to people in such a position who were asking us to extend their ability to do their job more effectively. We would have that debate in the House if such a request were made.

I mentioned the purpose relating to electoral registration. We return to the general point that in our view the Bill will aid good public administration right across the piece. Where there is a high standard of identity verification, it makes sense to allow access to organisations that in their statutory functions carry out identity checks and depend on a high standard of identity verification.

I explained to the hon. Member for Newark that the clause is now subject to the affirmative procedure. To go through the same process as is envisaged for the powers to do with compulsion would be to escalate things too far. If anyone were to seek the powers, it would be an obligation too far and could make it more difficult for them to be exercised. I refer him back to the fact that the clause has been significantly strengthened. Bearing my comments in mind, I ask him to withdraw the amendment.

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

I am grateful to the Under-Secretary for his clear exposition, and I note that subsection (2) has been included since we last went round this particular buoy. I maintain that super-affirmative powers would be helpful, but none the less, bearing in mind his comments and not wishing to sound more curmudgeonly than normal, I beg to ask leave to withdraw the amendment.