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

I beg to move amendment No. 84, in clause 25, page 22, line 16, leave out from ‘must’ to ‘State’ and insert

‘lay before each House of Parliament a general report’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments:

No. 85, in clause 25, page 22, line 18, leave out subsections (2) to (5) and insert—

‘(2)The Commissioner may also, at any time, lay before each House of Parliament such other reports on any matter relating to the carrying out of those functions as the Commissioner thinks fit.’.

No. 86, in clause 25, page 22, line 18, leave out subsection (2).

No. 87, in clause 25, page 22, line 21, leave out subsection (3).

No. 88, in clause 25, page 22, line 25, leave out from ‘would’ to end of line 27 and insert

‘cause substantial harm to the public interest’.

No. 89, in clause 25, page 22, line 26, leave out from ‘security’ to end of line 27.

No. 90, in clause 25, page 22, line 27, after ‘of’, insert ‘serious’.

No. 221, in clause 25, page 22, line 33, at end add—

‘(6)Any statement laid under subsection (5) must provide an explanation of why a matter has been excluded.’.

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

Amendment No. 84 stands in my name, the names of my hon. Friends, and the name of the hon. Member for Orkney and Shetland (Mr. Carmichael). The amendments can be divided into two sections. The first deals with the balance of power between the Executive—the Home Secretary—and Parliament, and the second deals with the power to edit the report. As Opposition Members, we are keen that the balance of power should be redressed—as I said earlier, it is out of kilter—and that Parliament should have a greater say in the commissioner’s reporting function. If the Secretary of State is to control the reports that are laid before Parliament, and if the commissioner has first to report to him rather than directly to Parliament, we should be told if not what the commissioner has had to edit, at least when he has had to edit his report or reports at the request of the Secretary of State. It is not clear in the Bill whether items or sections of the commissioner’s report that are removed from the report placed by the Secretary of State before Parliament will have been redacted or simply removed without Members of Parliament knowing what has been taken out.

Time does not permit me to read out each amendment in the group under discussion, but there is a serious argument and an issue to be joined between Parliament and the Executive. Here we are in Parliament trying to control the Executive over where the power to dispose should rest. Clause 25(1) states that

“the Commissioner must make a report to the Secretary of State about the carrying out of the Commissioner’s functions.”

Since, as the Government would have it, the commissioner is appointed by the Secretary of State subject to all the public appointments issues that the Minister mentioned, no doubt the Government think it right that the commissioner must report to the Secretary of State.

We, on the other hand, say that, despite the fact that the commissioner will be appointed by the Secretary of State, the commissioner is carrying out a public function for which he should account to Parliament, not because we distrust the commissioner, but because this is a hugely important issue of public policy. It is a whole new departure in the relationship between the state and the individual, and we, as protectors of the rights of the individual, the constituent and any individual who may not be a citizen but who happens to be within our shores, should have the right to inspect and to demand of the commissioner his report.

Amendments Nos. 85, 86 and 87 essentially make the same point. They would command the commissioner to account to us rather than to the Secretary of State. I can understand that as a matter of common sense the commissioner and the Secretary of State may discover matters about crime and terrorism   about which it would not be sensible for the public to know. None the less, even if the commissioner cannot tell us everything, he should at the very least present via the Secretary of State a report that blacks out what cannot be seen, so that we know precisely what exercise the report has been through before it was presented to Parliament.

That is the essential import of our two sets of amendments to that one line. I shall not labour the point further, save to say that in relation to amendment No. 221, the provision requires an explanation, which I hope that the Government shall not feel inhibited from giving to Members of Parliament.

Tobias Ellwood (Bournemouth East, Conservative)

The method by which parliamentarians can keep track of the progress of this legislation will be key to the reports that are made by the commissioner. As we have debated over the past few days, the entire project of a register and of producing ID cards is massive from a financial as well as a technical point of view. In many ways, the project is untested, so it is imperative that Members have an opportunity to monitor its progress and comment on it.

Will the Minister clarify how Parliament can take advantage of the reports in order to understand what the commissioner is doing and implement those reports? Bearing in mind the security-related nature of the reports, I am concerned that they may never see the light of day. My worry is that matters can be hidden behind some of the provisions, which means that we will not have an opportunity to discuss the reports, take on board public opinion and mould the project in such a way that it is palatable and appropriate.

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

In the Government’s response to the Select Committee on Home Affairs, we accepted the recommendation that the national identity scheme commissioner should have broader oversight of the whole scheme. That is broadly provided for in clauses 24 and 25. The commissioner’s remit will therefore include examining the uses to which ID cards are put and the dealings with recipients of information held on the register, and it is not limited to the administration and issuing of the cards. We accepted those points, which were raised by the Home Affairs Committee.

While I appreciate the arguments in support of the amendment, the Government consider it necessary for reports to be addressed to the Secretary of State, with the potential for parts of a report to be excluded from the version laid before Parliament. That is the case primarily because of the function of the commissioner in overseeing the provision of information without consent. As I shall discuss later, many of the concerns of the hon. and learned Member for Harborough are dealt with in the clause.

There are precedents for this situation in the oversight of police activities, which falls to the Office of the Surveillance Commissioners. The chief surveillance commissioner reports annually to the Prime Minister and has similar discretion to that set out in the clause. Similarly, when Her Majesty’s inspector of constabulary reports to the Secretary of   State, he has the power to exclude from publication any part of the report that would be against the interests of national security or might jeopardise the safety of any person.

The amendments would remove the Secretary of State’s discretion to exclude information held in a report where he considers that a matter contained in the report would be prejudicial to national security or the prevention or detection of crime. Given the sensitivity of some of the information relating to provision of information without consent, there are certain circumstances in which it would be prejudicial to these matters if a report were laid in Parliament that could be publicly read.

For example, the commissioner will have responsibility for oversight of the provision of information without consent to the Serious Organised Crime Agency. It cannot be in the public interest or Parliament’s interest for those matters to be in the public domain. To make public the purposes for which that organisation had been provided with information in every case would allow very sensitive information to be released. It would also be inconsistent with the usual oversight procedures for these bodies and, as such, may limit their use of the register. That would impinge on those bodies and their efficacy—in this case, in fighting organised and serious crime. Again, that cannot be in the national or public interest.

I do not think it is appropriate either to raise the exclusion threshold to “serious” crime, since information may be provided without consent under the previous clauses for all crime. The Government therefore see the power to exempt information as necessary. There are safeguards to the use of the power, however. The Secretary of State must consult the commissioner before any part of a report is excluded from publication. Decisions are not simply made on a whim of the Secretary of State. The practice of the intelligence services commissioner and the interception of communications commissioner is to provide a report to the Prime Minister in two parts; one is to be laid in Parliament, and there will also be a confidential annexe not for publication. If such a practice were adopted by the commissioner, it would effectively allow him to recommend which parts of his report should be made public, although this will be done in consultation with the Secretary of State.

We have listened to the arguments made about the power to exclude information from the reports. Observant Opposition Members will have noticed that this Session’s Bill no longer allows matters to be excluded on the ground that they would be prejudicial to the continued discharge of the functions of any public authority or would be otherwise contrary to the public interest. Those elements were in the previous Bill, but we dropped them from this one. If a matter were excluded from the report, a statement would be laid before Parliament to that effect, just as it is in relation to reports made by the commissioners whom I have mentioned. The relevant provision is subsection (5).

I do not consider it necessary for an explanation to be provided as to why a matter has been excluded. As I mentioned, only two bases are left in the Bill on which matters can be excluded: where something is prejudicial to national security or to the prevention or detection of crime. Providing further explanation may well result in those aims being frustrated, and bodies that are doing serious business in the public and national interest may be hidebound or restricted in their ability to use the register.

I am sure about that view, despite the points that have been made concerning the relationship between the Executive and Parliament in relation to scrutiny, which I accept. I am sure that it is not the intention of the amendment to debilitate in any way the ability of the Serious Organised Crime Agency and others to utilise the register. In that context, I ask the hon. and learned Gentleman as pleasantly as I can to seek leave to withdraw the amendment.

Ben Wallace (Lancaster & Wyre, Conservative)

I still cannot see why the commissioner cannot respond to Parliament. I take the Minister’s points on board, but I also note that under subsection (3), much of the commissioner’s remit will be dealt with by the other commissioners whom the Minister mentioned, who report directly to the Prime Minister. Given the use of national security or national interest as a barrier, I wonder what is left for the commissioner to expose.

I take the point about the Serious Organised Crime Agency, but in a debate on a previous amendment, the Government was asked why that agency was not included in the matters under review. In this instance, I do not see why the commissioner could not report to Parliament, and I am not convinced by the Minister’s response on that. There are plenty of other areas that are excluded, so I am not persuaded. I hope that my hon. and learned Friend the Member for Harborough will press the point.

Tobias Ellwood (Bournemouth East, Conservative)

May I press the Minister again to respond to my queries about the checking process that Parliament will have with regard to the commissioner and the report? Will Members of Parliament have the opportunity to review annually what is happening? I am concerned that the clause contains provisions that will prevent Members from carrying out that role.

I understand that we are about eight years away from the launch of the project in its entirety. The Minister gave other examples of existing structures in which commissioners or senior representatives provide reports, but they are already in situ. This is an entirely new project using taxpayers’ money that is yet to be tested. That is all the more reason why Parliament should have an opportunity to comment on the matter. Will the Minister also elaborate on the period between now and the appointment of the commissioner?

We have eight years until the project is launched. If at some point the figures were added up and we saw that we had ended up spending twice as much as the original cost of, say, £5 billion, would the Government concede that we were spending too much money on the   project? Parliament must have an opportunity to comment on the process as things develop between now and the launch of the project. We are in untested territory; it is not a matter of simply picking up something that already exists and putting it into practice. Will the Minister clarify how we will ensure that the project remains accountable?

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

I am sympathetic to the argument put forward by my hon. Friend. It would be helpful if the Government explained—if not now, they should do so at some early stage—whether there will be an annual debate on the commissioner’s report, albeit that it may come via the Secretary of State.

I am also sympathetic to the point made by my hon. Friend the Member for Lancaster and Wyre (Mr. Wallace), but I am afraid that time does not permit us to press it to the extent that we would like. I look forward to hearing the matter discussed in another place, not with greater leisure—that is the wrong word—but with more time available.

I listened to what the Minister had to say about the amendment, and I will not seek to press it to a Division, but he should understand—I think that he probably does—that this area of public policy is unravelling minute by minute. Parliament as a whole needs to be kept abreast, and it also needs to keep control of the Executive. If the Home Secretary wants to look at and edit the commissioner’s report before he condescends to let us see it, it behoves the Government all the more vigorously to be frank, candid and open with the legislature as the legislation develops—or is rolled out, as the Minister would say.

I am not usually fond of co-operating with the Government, but I will do so in this instance. In the spirit of co-operation, I will ask for the amendment to be withdrawn. I hope that the Minister accepts, however, that this issue will not go away simply because of that. I beg to ask leave to withdraw the amendment.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss new clause 2—Reports on the Commissioner’s functions—

‘(1)As soon as practicable after the end of each calendar year, the Commissioner must lay before Parliament a report about the carrying out of the Commissioner’s functions.

(2)The Commissioner may also, at any other time, lay before Parliament other reports on any matter relating to any of the functions or powers set out in this Act.’.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

I am sure that the Minister and the Committee will acknowledge that my party does not accept that the national identity register is justified. We will keep making that point. I was sorry to hear that the Minister thinks that we are inconsistent, because I think that it is fair to say that my party is perhaps the only party that has been consistent on this issue since it was first raised. I have no doubt that once upon a time   Government Members were progressive politicians who thought the sort of Orwellian nonsense that we are currently addressing should be fought against rather than backed without question. Our opposition is consistent and principled, rather than opportunistic. None the less, in the context of the Bill, we welcome the creation of a national identity commissioner. We think that that is necessary and that it will improve the legislation.

The new clause would extend the commissioner’s powers in a defined way, rather than in the open-ended way that clearly so irked the Minister earlier. Let me outline its two main purposes. It would allow the commissioner to make an annual report with a wide-ranging remit that covered the carrying out of all their functions. It would also give the commissioner the power to make other reports to Parliament relating to other functions and powers in the legislation.

We want the commissioner to be an independent and robust reviewer of the scheme’s operation, and we are not convinced that there is sufficient capacity for the role to operate in that way. The commissioner does not have the power—we believe that they should do—to review the adequacy of their own role or even officially to express a view. Why not allow the commissioner to have that role?

The Secretary of State must lay a copy of the commissioner’s reports before Parliament, but we are concerned that the Secretary of State can edit and omit things for an unjustifiably wide range of reasons, if in their judgment those items are prejudicial to national security—[Interruption.]

Roger Gale (North Thanet, Conservative)

Order. The Committee is aware of my disdain for private conversations in the Room. There are lovely green Benches outside in the Corridor; anybody who wishes to have a private conversation can go out and sit on them.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

Thank you, Mr. Gale.

I am concerned that the Secretary of State can decide what is and what is not acceptable in the commissioner’s reports. Far too much licence is given; for instance, the report may edited on the basis that something in it could be prejudicial to the discharge of the functions of any public body. Of course, that would include the Home Office and the UK Passport Service. Items in the report that were critical of the services—they would be vital elements and central to the role of the commissioner—could be excluded from it. That is a matter of great concern.

No doubt, the Minister will entertain us with a demonstration of incredulity at the idea that there could be any abuse of the power or that people could play fast and loose with it. However, as we said earlier, the general opposition to the Bill is based on the obvious fact that we cannot bind our successors to behave in a certain way. The Minister knows that. Not to define and extend the powers of the commissioner is naive and politically counter-productive. It simply stokes the suspicions and fears of people such as me and the increasing number of people outside   Parliament who are opposed to the Bill. We are merely trying to be helpful and to do a better public relations job on the Bill than the Government are doing.

Roger Gale (North Thanet, Conservative)

Order. Before we proceed, I remind the Committee that new clause 2 has not been moved. Were it to be moved, that would be done in the appropriate place at the end of our considerations, although it is being taken with this stand part debate on clause 25.

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

If the hon. Member for Westmorland and Lonsdale (Tim Farron) is trying to be helpful, he has failed miserably. I will forgive him, because he has been in the House for only about three months.

The role and function of the commissioner is a very serious matter. To treat it so lightly and tritely, in what was, in essence, a fourth-form debating society speech is simply not good enough. The hon. Gentleman talked about the wide-ranging scope to exclude things in the report. National security and the prevention or detection of crime do not constitute a wide-ranging scope. He talked about the second element of his new clause as though it were some wonderful, radical innovation that even Lloyd George would delight in were he still with us, but that element has already been included in subsection (2), which states:

“The Commissioner may also, at any other time, make such report to the Secretary of State on any matter relating to the carrying out of those functions as the Commissioner thinks fit.”

The hon. Gentleman should be thoroughly ashamed of himself if he is happy three months into his parliamentary term, on the basis of some obtuse, fourth-form, third-party or minor party point of principle, to undermine in any way, shape or form the work of the security forces, the Serious Organised Crime Agency and others who seek to defend our national security and to detect those who would commit crime. The Committee should dispatch with relish new clause 2 for the fourth-form drivel that it is.