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

I beg to move amendment No. 218, in clause 24, page 21, line 14, leave out “The Secretary of State” and insert “Parliament”.

I want to expose the fiction of the Secretary of State and the Executive—the Government—being different from Parliament. It will not take an inordinate length of time to do so. We are keen to give Parliament the power of oversight of the Government. We all know that the Executive sit not just in Parliament, but on it. We are talking about an Executive with a large majority—in historical terms, a majority of 66 over all other parties is large, albeit a good deal smaller than the majorities achieved in 1997 and 2001. That majority effectively means that there is no difference between parliamentary oversight and Government diktat. The amendment is perhaps a desperate attempt by the Opposition to get greater oversight of what the Government do in our name.

Subsection (1) reads:

“The Secretary of State must appoint a Commissioner to be known as the National Identity Scheme Commissioner.”

That is all very well, but I urge the Government to allow Parliament a rather greater say in affairs of state from time to time. I will be interested to hear what they have to say on that.

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

As ever, I thank the hon. and learned Gentleman for his brevity. He should not be timid: if he wants Divisions, let us have Divisions. There is plenty of time. We are not rushing towards an impending deadline. More time has been made available, so he can have Divisions at his leisure.

I do not mean to detain the Committee unduly on this amendment, but let me just say that since the Nolan Committee on Standards in Public Life reported, all Government appointments have been made under the auspices of the Office of the Commissioner for Public Appointments, at Parliament’s behest. Given the existence of the commissioner, we do not feel it necessary for the national identity scheme commissioner to be appointed only by resolution of both Houses of Parliament. The national identity scheme commissioner will be appointed by the Secretary of State. The standard rules on public appointments will apply and there are untold precedents for such an arrangement—not only in other Departments, but in the Home Office.

The surveillance commissioner is appointed by the Prime Minister after consultation with Scottish Ministers, the intelligence services commissioner is appointed by the Prime Minister and the immigration services commissioner is appointed by the Secretary of State. All are appointed under the auspices discussed and agreed by Parliament according to the Nolan report on standards in public life. That is more than a sufficient safeguard: the process is as open to scrutiny and as transparent as such things can be.

Nothing would be achieved by going down the route suggested by the amendment. I hazard a guess that if any other Government were in power, they would make such an appointment in the prescribed manner laid down by Parliament rather than by resolution in both Houses. For those reasons, the amendment is unnecessary. I ask the hon. and learned Gentleman to withdraw it.

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

Gosh, I am persuaded by the Minister as far as this: I shall withdraw my amendment. None the less, the balance between the Executive and Parliament is out of kilter and needs to be reformed. 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. 219, in clause 24, page 21, line 27, after “cards”, insert “and the ID Register”.

This amendment is simple, but it begs an important question. I fail to understand why we did not get on to debating the substantive matter of identity cards until seven clauses had first been discussed. That led to comments from my hon. and learned Friend the Member for Harborough and others that the Bill, which we hope will not become an Act, although no doubt it will, should be termed the national identity register Bill.

It seems curious that the register should suddenly be left out of an important paragraph of clause 24, which involves us talking about the important issue of the appointment of the national identity scheme commissioner. I do not want to beg the point; with the simple addition of the words in the amendment, we would begin to refocus ourselves on the fact that we are talking about not only a little bit of plastic that nobody can compel us to carry and that we will not be required to surrender when someone asks for it, but the fact that there will be a national register, the objections to which we have already discussed at length. Adding those simple words would help to make things a little simpler.

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

The amendment is simply unnecessary. Paragraphs (a), (b) and (c) of clause 24(2) cover in detail all that is laid out in the legislation and the commissioner’s role in relation to the register. They do not cover

“the uses to which ID cards are being put”,

which is why paragraph (d) is there. Paragraphs (a), (b) and (c) cover the whole gamut of the Bill as the domain within which the commissioner should carry out his or her role. Adding mention of the national register to   paragraph (d) would at least confuse and at worst obfuscate to the point of being an art form. I ask the hon. Gentleman to withdraw his amendment.

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

We all appreciate art forms in every style that the Minister suggests. Sadly, however, what he is saying is not correct. The amendment would add considerably to the clause, rather than detract from it, but given the fact that we are trying only to add a couple of extra words, and in light of what he said about paragraphs (a), (b) and (c), I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 80, in clause 24, page 21, line 28, leave out from ‘Commissioner’ end of line 43 and insert

‘include general policy matters, but do not include—

‘(a)the exercise of powers which under this Act are exercisable by statutory instrument or by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I.1979/1573 (N.I.12)) unless any particular case affected by these powers or rules raises a concern of substantial public interest;

(b)the imposition of civil penalties, objections to such penalties or appeals against them, unless a particular penalty, objection or appeal raises a concern of substantial public interest;

(c)the operation of so much of this Act or of any subordinate legislation as imposes or relates to criminal offences in any particular case, unless a particular case raises a concern of substantial public interest;

(d)the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest; or

(e)the provision to another member of the intelligence services, in accordance with regulations under section 23(5), of information that may be provided to that Director-General, Chief or Director in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest.’.

Jimmy Hood (Lanark & Hamilton East, Labour)

With this it will be convenient to discuss the following amendments: No. 184, in clause 24, page 21, line 28, leave out ‘do not’ and insert ‘shall also’.

No. 81, in clause 24, page 21, line 29, leave out paragraphs (a) to (c).

No. 220, in clause 24, page 21, line 36 , after second ‘service’, insert

‘the Chief Executive of the Serious and Organised Crime Agency’.

No. 82, in clause 24, page 21, line 43, at end insert—

‘(3A)‘The Commissioner may, where appropriate—

(a)before undertaking a review which include the policy towards the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters, liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner, or

(b)liaise with the Information Commissioner in relation to any processing of personal data.’.

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

We are concerned with the commissioner’s ability to oversee the work of the Secretary of State, the administration of the ID register and the identity card scheme. The amendments deal with clause 24(3), which begins:

“The matters to be kept under review by the Commissioner do not include”,

after which various exceptions are listed. Why are those exceptions not included? Although there will be good reasons why a national identity scheme commissioner should not consider particular cases, he should have oversight on a thematic basis. Amendment No. 80 would permit the commissioner to take a general oversight of policy matters, but it would expressly exclude from that general thematic oversight the matters set out in its proposed paragraphs (a), (b), (c), (d) and (e), which would be substituted for the current wording. I hope that the Committee shares our view that it does not take much imagination to see that that is a sensible, proper thing for the commissioner to do, and that it does not detract from the powers that the Secretary of State wishes to give to himself in relation to his official functions.

I will leave it to my hon. Friend the Member for Westmorland and Lonsdale to deal with amendment No. 184.

Amendment No. 81 would delete paragraphs (a) to (c) of subsection (3). The thrust of the arguments that I would deploy on that amendment is the same as in relation to amendment No. 80.

Amendment No. 220 would add the chief executive of the Serious and Organised Crime Agency to paragraph (d), in addition to the director general of the Security Service, the chief of the Secret Intelligence Service or the director of Government Communications Headquarters. If the Government are serious about what they intend, surely they should employ all the heads of the relevant police or security services in the detection and prevention of serious crime. Either that is an oversight, or there is some magic in the poor man’s not being included in this subsection.

Amendment No. 82 would add new subsection 3A, which says:

“The Commissioner may, where appropriate ... before undertaking a review which include the policy towards the provision of information to the”

various directors general,

“liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner ... or liaise with the Information Commissioner in relation to any processing of personal data.”

That is a sensible cross-directors general liaison. There may be matters that affect that aspect of the security services in a way that should not be limited to one service head. If the commissioner thinks it appropriate, surely he should be able to refer to the intelligence services commissioner the review that he is undertaking. I cannot for the life of me see why that should be objectionable to the Government, any more than I can see why proposed subsection (3A)(b), which amendment No. 82 seeks to add to the Bill, should be.

The matter is one of sensible, thematic oversight. The amendment does not seek to interfere with the courts or with the discretion of the Secretary of State, although I object to the way in which the Secretary of State is giving himself huge discretion under the Bill. It seeks to provide sensible and dispassionate oversight of a growing area of interference in the life of the individual.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

Given that it is my first opportunity to do so, I thank the Minister for his kind words last week in observing my absence because of important constituency business in the north-west. [Interruption.]

Jimmy Hood (Lanark & Hamilton East, Labour)

Order.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

I did not say which constituency in the north-west.

I wish to speak in favour of amendment No. 184, which stands in my name and that of my hon. Friend the Member for Orkney and Shetland. I will do so briefly. The amendment would alter subsection (3) by altering “do not” to “shall also” to widen the powers of the commissioner.

Given the controversial nature of the register and the Government’s sincere desire to allay our fears, which are shared by many people outside this place, we think that it is odd to restrict the role of the commissioner so much. It is interesting that the commissioner will be able to review only general structural issues, not individual complaints or cases, or how the scheme operates in practice. For example, the commissioner will be excluded from considering the imposition of fines, criminal offences relating to identity cards and information provided to the security services and the Secret Intelligence Service or GCHQ.

Given the culture-changing nature of the Bill and the register, it is ridiculous not to give the commissioner the opportunity to have a more far-reaching role and the ability to consider the operation of the scheme that he or she is there to monitor. I would be grateful if the Minister took that into account.

Nick Palmer (Broxtowe, Labour)

I seek some clarification from the hon. and learned Member for Harborough. Under the Government’s proposal, it would be possible—I suggest that it would also be natural—for the commissioner to report on the extent to which civil penalties were being applied, including on whether they were increasing or decreasing and so on. In amendment No. 80, the Opposition specifically rule that out. In the Government’s version, only “appeals against civil penalties” are ruled out. In the Conservative version,

“the imposition of ... penalties, objections to such penalties or appeals against them”

are all ruled out. I wonder why.

Ben Wallace (Lancaster & Wyre, Conservative)

I would like some clarification. I speak in support of amendment No. 184, which was tabled by the hon. Member for Westmorland and Lonsdale, whom I welcome back to the Committee. He is my neighbour in the north-west, and I am sure that the   good people of Westmorland and Lonsdale will be delighted to hear that their new MP enjoyed Cheadle so much.

It is important to ask why the Minister chose to narrow the functions of the commissioner and to limit the areas that he or she can consider. I ask him to clarify that point. I am aware that a number of these agencies already have their own commissioners for oversight, but it is a broad responsibility for the individual commissioners to analyse the use of the database. The proposed commissioner will be best positioned to understand the issue in the round, where the weaknesses are being exposed and where abuse of the system has taken place. Will the Minister clarify that point?

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

Simply put, all matters outlined in subsection (3) are broadly either subject to parliamentary scrutiny or fall within the jurisdiction of the courts or within the remit of another commissioner. Their exclusion, as proposed by subsection (3), is intended to avoid doubt and confusion, and to add clarity. The notion that the provision is somehow a mischievous way of restricting and narrowing the commissioner’s remit and his oversight of the project outlined in the Bill is complete nonsense. If that is the best that the hon. Member for Westmorland and Lonsdale can do, perhaps he should have stayed in Cheadle.

The hon. and learned Member for Harborough offered more serious comments in his amendment. He accepted the premise that many areas fall within the jurisdiction of others, while he still sought to place broader policy matters and other items within the remit of the commissioner. His points were better made than those in the schoolboy amendment that we have just dispatched.

None the less, for good reasons, those matters still go beyond the remit of the national identity scheme commissioner. Amendment No. 80 would add to the remit of the commissioner general policy matters and areas that are excluded from his remit, if they are a matter of substantial public interest. I am grateful that the amendment recognises that those matters should be excluded, and also that they should be admitted only if they are of substantial public interest. None the less, the amendment is unnecessary, and subsection (3) should remain in its totality.

Amendment No. 82 should be read in conjunction with amendment No. 80, as the hon. and learned Gentleman suggested. Amendment No. 82 would first allow the commissioner, when undertaking a review of the provision of information to the intelligence agencies, to liaise with the intelligence services commissioner with a view to referring responsibility for that review to him. The amendment would also allow the national identity scheme commissioner to liaise with the Information Commissioner about the processing of personal data.

The role of the national identity scheme commissioner was drafted following our consultations about the draft Bill. It is important that the powers in the Bill can be appropriately scrutinised, but it is also important that we use the resources available to us   appropriately. The reason for excluding the matters listed in subsection (3) from the role of the commissioner is that those parts of the Bill are already subject to independent scrutiny by Parliament, the judiciary or the intelligence services commissioner.

The amendment is important, and I want to take each of its elements in turn. First, the exercise of powers by means of statutory instrument or statutory rule in Northern Ireland would be subject to parliamentary oversight. Secondly, appeals against civil penalties would be a matter for the civil courts. Thirdly, the criminal offences that are dealt with would be a matter for the criminal courts. Fourthly, the provision of information to the intelligence services would be subject to oversight of the intelligence services commissioner and the investigatory powers   tribunal dealt with in clause 26. Finally, the Secretary of State’s powers in relation to passports under clause 39 would not be connected with identity cards or the register.

There are clear reasons why each item should be excluded. To talk about the matter in terms of narrowing or restricting the role of the commissioner, as the hon. Member for Westmorland and Lonsdale did, is not appropriate. The Bill provides adequate and more appropriate scrutiny of the excluded functions, as I have just outlined, and as such, amendments Nos. 184 and 81 are unnecessary. Amendment No. 80 would provide that the commissioner should have the oversight that I have discussed.