Roger Gale (North Thanet, Conservative)

I remind the Committee that with this we are discussing 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.’.

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

Welcome to our deliberations, Mr. Gale. Before the break, I was drawing my remarks on amendment No. 80 to a close.   The only substantive point to make is about oversight in relation to an excluded matter when a particular case raises a concern of substantial public interest. I said that the notion that clause 24(3)(a) to (g) in any way deliberately limits the commissioner’s role is not correct. These jurisdictions overlap with those of other commissioners and bodies, including Parliament. However, I want to discuss the fair point about a concern that is of substantial public interest.

To a large extent, the amendment is seeking to do something that the clause does already. Let us take proposed paragraph (b) of the amendment. While it is not for the commissioner to review the actual exercise of delegated powers—that is Parliament’s role, not the national identity scheme commissioner’s—it is clear from subsection (2)(a) that it is the commissioner’s role to review the Secretary of State’s functions

“under this Act or the subordinate legislation made under it”.

In so far as statutory instruments, regulations and statutory rules in a Northern Ireland context need reviewing within the context of the Act, that is already covered under subsection (2)(a). It is right to exclude the wider scrutiny role of subordinate legislation in general terms, which is the purview of this place, from the commissioner’s deliberations.

To use the language of the proposed paragraph (a), I refer to the position in which

“any particular case affected by these powers or rules raises a concern of substantial public interest”

under the Bill. That will obviously fall within the jurisdiction of the commissioner.

By referring to appeals against civil penalties, proposed paragraph (b) of amendment No. 80 would do precisely what clause 24(3)(b) does. Appeals are for the civil courts and it would be inappropriate for the commissioner to have an overlapping jurisdiction. However, it is right that the commissioner has oversight of the rest of the civil penalties machinery, because that will be run by the Secretary of State and, without the commissioner, would not be subject to an oversight. Therefore, proposed paragraph (b) of the amendment, which would remove that part of the commissioner’s jurisdiction, is inappropriate.

Proposed paragraph (c) of the amendment would enable the commissioner to examine the prosecution of a person for a criminal offence under the Bill if that raised a matter of substantial public interest. I do not believe that that is right. Prosecutions are a matter for the police, the Crown Prosecution Service and the courts. In exceptional circumstances after the event, a prosecution will be the subject of an inquiry. It would be unusual to empower a commissioner to review prosecutions that he considered would raise a matter of substantial public interest. Although I understand the grain of the amendment, it is not necessary for the reasons that I have outlined.

Proposed paragraphs (d) and (e) would give the commissioner jurisdiction to review the provision of information to the security services, again subject to the substantial public interest test. The reason for leaving national security matters to existing statutory commissioners, who were created specifically to deal with national security matters, is obvious. I am   referring to the overlapping of jurisdictions with existing commissioners. We do not want such sensitive issues to be dealt with in wide-ranging forums. It is better that they be dealt with by those who deal with them daily. Although I understand in which direction the hon. and learned Member for Harborough (Mr. Garnier) wants to draw us, I do not believe that amendment No. 80 is appropriate. It has raised some interesting points, but I ask him to withdraw it.

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

I shall seek leave to withdraw the amendment because it can probably be more fully discussed on another occasion.

The hon. Member for Broxtowe (Dr. Palmer) made one of his usual interesting and wholly Delphic interventions. He fails to understand—it is probably not his fault because he has not been an Opposition Member of Parliament, having come straight to the Government Benches in 1997, or 2001—

Kali Mountford (Colne Valley, Labour)

1997.

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

I stand corrected. The hon. Gentleman fails to understand the restrictions under which the Opposition must work on the Floor of the House and in Committee. They must do their best to create opportunities for debate, to hold the Government to account and to tease out their policy, particularly with a Christmas tree Bill such as this, which gives the Secretary of State huge powers to do things in the name of the state. The Government have not condescended to give us the details at this necessary stage.

The hon. Gentleman will forgive me if I tease him slightly. This is not a court of law or a place where the burden of proof is deployed. It is not even a place where any standard of proof must be deployed. It is not an intellectual debating society, but the rough and tumble of Parliament. It is not a perfect way of dealing with the matter and I accept his implied criticisms that some of our amendments would do things that in his eyes are illogical or contrary to the public interest.

The purpose of all our amendments is to get the Government to explain themselves or, if they will not, to meet them head on and to test the will of the Committee by seeking a vote. The hon. Gentleman knows as well as I do that we can never win a vote if the Government have their people here. Although we may win arguments, I cannot engage in a sensible intellectual argument with him about the merit of the policy because, at the end of the day, the Government will simply say, “Very interesting. Let us have a Division and defeat the Opposition.” That is Parliament and I am not complaining about it. I have got used to it since 1997, but if he has a spell in opposition—I trust that he will have that opportunity in due course—he will realise that there are more perfect ways of holding a Government to account. However, that is all in parenthesis to what the Minister said.

There will be other opportunities to debate as parliamentarians the issues covered by our amendments. 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. 83, in clause 24, page 22, line 8, at end insert

‘to a maximum of 10 members of staff’.

I welcome you back, Mr. Gale. It is good to have you with us.

The amendment is simple and seeks to discover what the national identity scheme commissioner will look like when he exists, red in tooth and claw. How will the Government appoint him and what will his establishment look like? Subsection (6) states:

“The Secretary of State—

(a)after consultation with the Commissioner, and”—

the grammar is strange—

“(b)subject to the approval of the Treasury as to numbers,

must provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.”

The amendment would add,

“to a maximum of 10”.

We want, purely and simply, to find out exactly what the commissioner’s establishment will be, how much it will cost and how much it will add to the overall cost of this already exorbitantly expensive scheme.

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

As the hon. Gentleman implies, amendment No. 83 would limit the commissioner’s staff to 10 people. Although the Government have not determined how many people would be required to work for the commissioner, we have given the matter some initial consideration and simply do not believe that it is possible for the commissioner to carry out his functions with so few people, not least because his functions have been extended following the Home Affairs Committee’s recommendations to include not just oversight and the provision of information from the register but the general operation of the scheme. The Government consider that it is for the commissioner as well as the Treasury to be consulted when determining staff numbers. That will ensure that the commissioner has sufficient resources to undertake his statutory functions, but no more than necessary.

It is entirely standard practice to provide such a safeguard; for example, it was used in the Regulation of Investigatory Powers Act 2000 for the establishment of the Intelligence Services Commissioner. We are not about to be profligate with public resources in respect of the staff that the national identity scheme commissioner needs. Hon. Members will understand that his role is key to the overall scrutiny of the system, certainly as it is introduced and beds down. We do not want unduly to limit his staff numbers in quite the way that the hon. Gentleman seeks to do.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

Will the Minister reflect on one small point: the difference in tone between Liberal Democrat   opposition to the Bill and that of the Conservatives? If it were to come to a vote, my party would not support the amendment. It appears that the motivation of the official Opposition is simply to limit expenditure, whereas our concern is to ensure that the commissioner has the greatest ability possible to scrutinise the system. The limit suggested by the Conservatives would perhaps save a few pence here and there, but it would limit his effectiveness.

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

I am grateful for the import and flow of that intervention, if nothing else. The hon. Gentleman will forgive me if I do not take much notice of the Liberal Democrat tone—it varies from day to day, street to street, ward to ward and constituency to constituency. However, in good order and with good spirit, I accept the flow of his comments—for today. No doubt they will change tomorrow or next week.

The Government are clear that a staff of 10 is not sufficient for the commissioner to carry out his task. With that sentiment, I ask the hon. Member for Newark (Patrick Mercer) to withdraw the amendment.

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

I have listened to what the Minister has said. As usual, his argument has been lucid.

I accept the fact that the commissioner is not yet established. Although I believe that the addition that we would make would help and assist, I take it that the Minister’s reassurance about subsection (6)(b) means that, to all intents and purposes, the amendment will be observed in the principle if not in the letter. On that note, I beg to ask leave to withdraw the amendment.