New Clause 4 — Application of Freedom of Information Act

Identity Cards Bill – in the House of Commons at 2:45 pm on 10th February 2005.

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'(1) The following provisions shall have effect in relation to reports and information which have been prepared in relation to this Act.

(2) The Commissioner is a public authority under the Freedom of Information Act 2000 (c. 36).

(3) In relation to requests for information to the Commissioner under the Freedom of Information Act 2000, the exemptions in sections 35 (formulation of Government policy) and 36 (prejudice to effective conduct by public affairs) of that Act cannot be applied.

(4) In relation to requests for information to the Commissioner under the Freedom of Information Act 2000, any exemption which was considered subject to the provisions in section 23 (information relating to bodies dealing with security matters) shall instead be treated as if the exemption were subject to section 24 (national security) of that Act.'.—[Mr. Malins.]

Brought up, and read the First time.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I beg to move, That the clause be read a Second time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: Amendment No. 20, in clause 24, page 21, line 15, leave out third 'and'.

Amendment No. 21, in clause 24, page 21, line 16, at end insert

'and

(e) the workings of the Identity Card Scheme and the Register including complaints made to him in relation thereto.'.

Amendment No. 15, in page 21, line 17, leave out from 'Commissioner' to end of line 33 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.'.

Amendment No. 23, in clause 24, page 21, line 18, leave out paragraphs (a) to (c).

Amendment No. 16, in page 21, line 33, at end insert—

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

(a) before undertaking a review which includes 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.'.

Amendment No. 24, in clause 24, page 21, line 45, at end insert

'to a maximum of ten members of staff'.

Government Amendment No. 56

Amendment No. 17, in clause 24, page 21, line 46, after 'section', insert—

'"Information Commissioner" means the Commissioner established by the Data Protection Act 1998 (c. 29);'.

Amendment No. 18, in clause 24, page 21, line 47, at end insert—

'"personal data" has the same meaning as in section 1 of the Data Protection Act 1998 (c. 29).'.

Amendment No. 26, in clause 25, page 22, line 3, leave out from 'must' to 'about' and insert

'lay before each House of Parliament a general report'.

Amendment No. 27, in clause 25, page 22, line 5, 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.'.

Amendment No. 28, in clause 25, page 22, line 5, leave out subsection (2).

Amendment No. 29, in clause 25, page 22, line 8, leave out subsection (3).

Amendment No. 35, in clause 25, page 22, line 8, leave out 'annual'.

Amendment No. 36, in clause 25, page 22, line 9, at end insert 'and (2)'.

Amendment No. 38, in clause 25, page 22, leave out lines 12 to 15 and insert

'would cause substantial harm to the public interest'.

Amendment No. 37, in clause 25, page 22, line 12, leave out from 'security' to end of line 15.

Amendment No. 39, in clause 25, page 22, line 12, at end insert 'serious'.

Amendment No. 40, in clause 25, page 22, line 13, leave out from 'crime' to 'or' in line 14.

Amendment No. 25, in clause 25, page 22, line 14, leave out from 'authority' to end of line 15.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

On a point of order, Mr. Deputy Speaker. I want to make it clear that the letter in response to questions from the Joint Committee on Human Rights was available in the Vote Office, but that the staff there did not seem to understand that that was what was being requested. However, the Committee asked for a reply by 7 February and said that it would consider the response and report back. There has been no opportunity for the Committee to report back on the Government's response.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is not really a matter for the Chair, but the point made by the hon. Lady is now on the record.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Further to that point of order, Mr. Deputy Speaker. May I ask you to indicate—or the Minister, through you—what opportunity it is felt that hon. Members have to consider their response to the Joint Committee report before we continue our debate?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is not a point of order for the Chair at this stage. All the official documents necessary for dealing with the debate should, of course, be available to the House. That matter has been raised before, and I trust that the documents have been made available.

Photo of John Bercow John Bercow Conservative, Buckingham

Further to that point of order, Mr. Deputy Speaker. I seek your guidance. Is it not important for us to know exactly when the Government's response to the Joint Committee's report was deposited in the Vote Office? If information is supposed to be available before the debate, surely considerations of reasonableness must apply. Did the Government intend to put the response in the Vote Office only today? Was that an insult, incompetence, or a combination of the two? I think that we ought to be told.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is not a matter with which I can deal precisely at this time. I repeat what I said earlier—that all Government documents necessary for the debate ought to be available to all hon. Members before the debate starts. I think that we should now proceed, as time is limited today.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

No, we have dealt sufficiently with that matter for the time being. If the Government have not done something that they should have done, that will obviously be looked at later.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Thank you, Mr. Deputy Speaker. I should be extremely grateful if, at the end of this debate, we can have Divisions on new clause 4 and amendment No. 26. I shall speak to the latter in a moment.

The debate has been under way for a little while, and it is time for me to pay tribute to my hon. Friend Mr. Bercow. On Second Reading, he had something to say about the commissioner. I pause only to remind the House that clause 24 was not debated at all in Standing Committee, even though it is the vital clause that deals with the appointment of the national identity scheme commissioner. Neither was clause 25 debated in Committee, but on Second Reading my hon. Friend very properly expressed his disappointment that the Bill made it clear that the commissioner's report

"can, and probably will, be doctored by the Secretary of State before being presented to Parliament".

He went on to say:

"Does that not underline our anxiety that the commissioner will prove to be but a craven lickspittle of the Government?"

He was right to draw our attention to that issue. My right hon. Friend David Davis said that he had

"a prejudice in favour of the commissioner reporting to the House rather than to the Government".—[Hansard, 24 December 2004, Vol.428, c. 1958.]

What is the effect of my new clause and the associated amendments? Clause 25 provides that the commissioner must make a report to the Secretary of State about the carrying out of his functions. Clause 25(3) states:

"The Secretary of State must lay before Parliament a copy of every annual report made to him under subsection (1)."

So far, so good. However, the tricky bit comes next. Clause 25(4) states:

"If it appears to the Secretary of State, after consultation with the Commissioner, that the publication of a particular matter contained in an annual report . . . would be prejudicial to national security,"— so far, I think, so good—

"the prevention or detection of crime or"— and the House should mark the next words—

"the continued discharge of the functions of any public authority, or . . . would be otherwise contrary to the public interest" it could be excluded.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does my hon. Friend agree that the phrase

"would otherwise be contrary to the public interest" is couched in such wide language as to have no meaning other than that the Secretary of State may do as he pleases?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

My right hon. and learned Friend is right. I hope that the Minister will correct me if I am wrong, but the clause seems to give the Secretary of State the power to say, "I don't want Parliament to know about this bit of the report. I don't have to justify it on grounds of national security. I can catch this point under any of these little subsections." Frankly, I am not happy about that.

New clause 4 offers a different way to proceed that would avoid the House getting a watered-down report. As a general proposition, it is impossible to review the Secretary of State's actions independently and properly if the commissioner's reports to Parliament are filtered by him. For that reason, the new clause would establish an alternative scrutiny mechanism under the Freedom of Information Act 2000. New clause 4(2) identifies the commissioner as a public authority under that legislation, and there is no obvious dispute about that. Proposed new subsection (3) would disapply the exemption in the 2000 Act relating to the formulation of Government policy, as well as the prejudice to effective conduct by public affairs. It means that legal advice in relation to human rights and the ID card could be accessible to people who request it. The reason for that is that the Government, as the Joint Committee has shown, cannot be trusted on human rights issues.

New clause 4(4) would remove the absolute national security exemption, mainly because the service has, for example, secret access to details on the register under paragraph 9 of schedule 1. I commend the House to examine that paragraph.

My proposed change would not jeopardise national security, as the 2000 Act contains an additional, non-absolute national security exemption that can be used case by case. In short, new clause 4 would set up a new mechanism that would allow the House of Commons to have access to some information to which it would not have access otherwise but which may be very important. There is no intention to jeopardise national security, to which the new clause poses no threat. All we seek is a method whereby more information can be made available to parliamentarians.

Photo of John Bercow John Bercow Conservative, Buckingham

Clause 25 is a recipe for the exercise of ministerial fiat. The new clause that my hon. Friend Mr. Malins has commended to the House is absolutely indispensable to provide a brake on the use and abuse of Government power, and I warmly welcome it.

My hon. Friend's words about my little intervention on Second Reading were generous. I am thoroughly depressed about this obnoxious and distasteful Bill, but as a result of his characteristic generosity, I shall go about my business for the rest of the day with a glint in my eye and a spring in my step that would otherwise have been lacking.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

If I have brought a glint to my hon. Friend's eye and a spring to his step, I —

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Well, if my comments have caused those reactions in my hon. Friend the Member for Buckingham, I am delighted. It is probably my most useful act of the day.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Should the Minister decline to accept the new clause, would my hon. Friend consider advising colleagues in the other place to delete the phrase

"the continued discharge of the functions of any public authority" and paragraph (b)? Does he agree that if those amendments were made, subsection (4) would be less offensive?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

My right hon. and learned Friend is right. The other place will certainly consider that message. He has made an extremely valid point.

I am conscious of the time and want to make two further points. First—my right hon. and learned Friend touched on this—it would be better if those offensive parts of clause 25(4) relating to the

"discharge of the functions of any public authority, or . . . otherwise contrary to the public interest" were removed from the Bill, because we do not want to give the Home Secretary carte blanche to do what he likes without the House of Commons knowing about it.

My second point relates to amendment No. 26, which is simple and essential. It would change the clause so that instead of stating that

"the Commissioner must make a report to the Secretary of State", it would require the commissioner to

"lay before each House of Parliament a general report".

That is essential, which is why I hope that all hon. Members will support my amendment.

There is a further minor amendment. In Committee we debated the cost of the scheme as much as we could—we were heavily curtailed—but never received a satisfactory answer. One of my amendments in Committee, which is now amendment No. 24, relates to the appointment of the national identity scheme commissioner. Clause 24(6) requires the Secretary of State to

"provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions."

I pause only to say that at no stage have we been reassured about how many members of staff would be employed by the commissioner. My probing amendment suggests that it should be limited to 10, but it is only a probing amendment. Why would I probe? The answer is simple—it would be helpful when looking at the cost of the whole scheme to know what the cost of the commissioner and his staff will be. At the end of the day, someone must pay. There was an exchange in Committee when the Minister said that the issue had very little to do with taxpayers' money because the burden would be on the individual to pay for the service—[Interruption.] Well, if I have misquoted him, he will put me right, because he will have a chance today to speak to the House. He has not had that chance yet, but I hope that he will.

The national identity scheme commissioner should have broad and strong powers, and they should be wide-ranging and not limited. The commissioner should have greater powers to take any steps that he or she wants to take in relation to the scheme, even to the extent of receiving complaints from individuals about the way in which it is running. I do not want his powers to be limited. That is the genus of our amendments.

I am certain that any decent Government—I hope that this Government are decent—would accept the proposition that the commissioner should report direct to the House of Commons and would also accept that while matters concerning national security should perhaps be kept from the House, that is the limit of what should be kept back. Matters should not be excluded just because it suits the Secretary of State for us not to hear about them, otherwise there would be yet a further diminution in our influence and power. I hope that the debate on my new clause and amendments will produce some interesting arguments during the amazingly short time left to us.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central 3:15 pm, 10th February 2005

When my hon. Friend the Minister replies to this group of amendments, will he explain how and in what way the commissioner will have the power to protect the rights of the individual? Mr. Malins touched on that. If information on the register is inaccurate and wrong, or if the register is in some way abused, how will our constituents seek redress? I cannot see in these clauses that the commissioner has specific powers to act as a tribunal and guardian of individuals' rights. Should our constituents appeal to the commissioner, either through us or in their own right, and what could the commissioner do to put the matter right?

I suspect that every hon. Member has had constituents who have found that their credit rating is incorrect. A couple of years ago, one of my constituents had that problem and although the credit card company recognised and eventually admitted that its information was wrong and my constituent should not have been denied a credit rating, it took me nine months and unending correspondence to get it corrected. If that happens with a relatively small commercial data bank, how will constituents obtain redress and correct information? Surely, we must have a fast-track method of appeal to the commissioner, or to someone else, to have such information corrected. Otherwise, there will be absolutely no confidence in the scheme.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman agree that the commissioner might wish to use his annual report to identify such errors and to bring them to the attention of the House, so is it not undesirable to give the Secretary of State the power to amend the commissioner's report in the wide terms set out in clause 25?

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

I agree with the right hon. and learned Gentleman. He is addressing—correctly—the strategic macro point, but I do not want to lose my micro point about individuals. Whatever the virtues of the scheme, it will be completely discredited if it is seen to abuse the rights of individuals and people will not have confidence in it. In a scheme of this scale, which requires individuals to submit 56 pieces of information, things are bound to go wrong and there must be a fast-track procedure to put them right.

Photo of Robert Smith Robert Smith Opposition Deputy Chief Whip (Commons)

I appreciate the hon. Gentleman's concern from past experience of things going wrong. When the previous Government introduced the poll tax, one of its flaws, in addition to its unfairness, was that it attempted to keep a register of where everyone lived and, in the process, managed to introduce many mistakes. That register involved just names, addresses and locations of people, not the wealth of information that the national identity scheme will require.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

It is inevitable that there will be mistakes, so it is essential that our constituents have an easy, comprehensible and swift way of putting them right, otherwise their career and many other aspects of their life could be put at prejudice. I hope that the Minister will be able to respond to that point before we vote on the new clause.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

I am pleased that this group of amendments has been tabled, as it is an opportunity to explore at more leisure than we had on the previous group whether the commissioner will be any more than a fig leaf to cover the Government's embarrassment or genuinely an organisation or individual who will be a fearless champion for the citizen. That is what we are interested in.

When discussing these issues we must remember why an individual might want to go to the commissioner. What might have happened to them? They may be seeking redress for a range of serious circumstances. We know that the cards will be used for public services. A person may have had all kinds of hassle accessing a public service; they may have found it difficult to obtain health care or education. Those are serious matters for an individual. The person may have been falsely arrested and have had problems with the criminal justice system. We have seen how errors in the Criminal Records Bureau system have led to individual cases of hardship, where a person has been denied a job because a record is fake or has been falsely matched. We must be aware that people could be seeking redress for serious circumstances.

A person could have had travel difficulties. They might have failed to buy a car that they were after.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

On cue! The hon. Gentleman knows my theme—about needing a passport to acquire a new car. He was talking about accessing public services with the aid of an identity card. Would he care, just for a moment, to speculate on how widely the use of an identity card might be made necessary in private sector transactions?

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The hon. Gentleman is correct. A typical circumstance that someone may take to the commissioner is that in a financial transaction a bank has denied them access to financial services or they have been hauled up on suspicion of doing something they had not done, because the identity card checking process has gone wrong somehow, as it will do in some cases.

In Committee, we discussed the fact that there will be a trickle-down effect. Banks will be offered a voluntary service for checking people against the identity register and will be charged for that service. That is in the Bill. But then the Government could come along with money laundering regulations that will make the process mandatory if the banks want to be in the clear under those regulations. There will be a trickle-down effect; the ID card could come into play for a huge range of everyday transactions, for all of which people might want to go to the identity commissioner.

We must take the amendments seriously. They try to remove some of the restrictions that the Government have placed on the ability of the commissioner to carry out his or her work. Governments increasingly like commissioners for all sorts of things. We have seen how some of them—for example, the Information Commissioner, Richard Thomas, and the data protection commissioner, Elizabeth France before him—can build their roles and perform a good function. The Parliamentary Commissioner for Standards performs an effective function. The measure of that is the extent to which commissioners can criticise Ministers and the Government, on a serious and well-founded basis, and have that criticism accepted.

Well-functioning commissioners have an important role in making criticisms of particular instances and in drawing lessons from them to show why the system is flawed. That is what we want the identity scheme commissioner to be able to do. If, as we fear, the identity card system contains serious flaws, we want the commissioner genuinely to be able to highlight them and bring them to Parliament so that we can hold an informed debate and either scrap the scheme or change it, depending on the depth of concern. Our fear is that unless we accept some of the amendments or the Government make their own proposals to strengthen the commissioner's hand, the commissioner will be too weak.

The Government, like previous Governments, have been desperately keen to avoid judicial review of anything that they do. It now seems to be built into legislation—Ministers do not like being hauled up before the courts and told that their legislation is poor. I suspect that the commissioner process is part of that. The Government hope that the commissioner will deflect some of the criticisms that might otherwise come through the courts and be directed at a Minister.

I fear that the proposed commissioner system will still leave citizens having to take the judicial review route, which is much less satisfactory than being able to put the case to the commissioner, particularly in respect of the exclusion applied to the commissioner looking at the way that fines are levied. As we understand it, the Secretary of State, almost personally, will be taking people to court. The Secretary of State will take people to the county court saying, "You owe me £1,000 because you didn't register. You didn't notify your change of details or do x, y or z." The county court could send the bailiffs round if a person did not pay up. The Government are trying to avoid poll tax martyrs, so they have set up a complicated civil recovery scheme, yet the commissioner, unless the clause is amended, will have no power to look into that system.

Photo of John Bercow John Bercow Conservative, Buckingham

Have the Government offered any explanation at all of subsection (4)(b) of clause 25, the circumstances in which uncensored publication of the commissioner's report would be

"otherwise contrary to the public interest"?

If such an explanation has been offered, I have not yet heard it and it is palpable that, particularly in the early stages when all sorts of mistakes are made, the Government will have a huge vested political interest in suppressing publication on the ground that otherwise confidence in the whole scheme might—perish the thought—be damaged.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The hon. Gentleman is right to draw attention to that point. We received no explanation whatever in Committee because the clause was not debated; it just passed through. We had no opportunity to go into the detail of how the process would work. There is a clear statement in the clause that the Secretary of State can suppress matter if it would be contrary to the

"continued discharge of the functions of any public authority".

I think that plays to the hon. Gentleman's point. If the functioning of the identity card scheme would be damaged by publishing criticism of the scheme, we shall not criticise it. The law as currently drafted would seem to permit the Secretary of State to do that. If the Government have something to be embarrassed about, if they have dirty washing, let us have it out in public. What is the point of having a commissioner if they are not able to do that?

Unless the clause is amended, sadly, we shall have a fig leaf commissioner rather than, as I want to see, a fearless champion of the citizen. There will be a spill-over. If people cannot obtain satisfaction from the commissioner, there will be judicial review. The case will go to the parliamentary commissioner, the ombudsman, instead of to the identity commissioner. People will bypass the process. For example, if the problem was with the health service, they would go to the health service commissioner. We run the risk of creating a real mess and that is not satisfactory from the citizen's point of view.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman agree that the great advantage of new clause 4 is that it makes information available to the citizen, on the back of which the citizen can go to the court for judicial review if he feels that the Secretary of State has acted unreasonably?

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The right hon. and learned Gentleman is entirely correct about the citizen having access to information. There are other examples of the kind of harm we are talking about. Something may have happened to the system that meant that a citizen was denied entry to another country. They may have spent several thousand pounds to somewhere, but then have immediately been flown home again. That would be a serious incident in anyone's life. If that occurs, they must be able to obtain information about what went wrong. If there is any suggestion of blanket coverage, if the individual was told for example, that it was an agreement between the UK and the United States authorities covered by terribly secret terrorism provisions, when they were merely going on holiday to Disneyworld, that would not be satisfactory in terms of the citizen's ability to obtain redress. I question the point of having a commissioner if they were unable to expose that type of information. I hope that the citizen could go to the commissioner and say, "I turned up at Orlando airport and they sent me back. They said it was something that came out of the identity system that we are all part of now." I hope that the commissioner could say, "Right, I'm going to get on with that. We will take the case through whatever process we need to get the redress that you are after."

My fear is that the citizen will meet a blank wall and the commissioner will not offer such satisfaction. I hope that the Minister, in the time available to him, will be able to offer some more assurances. I suspect that this is one of the issues that will have to be picked up at greater length in the Committee proceedings down the corridor in the Lords, where they often do have sufficient time to consider such things. I certainly feel that to establish the commissioner without testing his real powers and accepting some of the amendments will not offer citizens the safeguards that they need for a scheme of this significance.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 3:30 pm, 10th February 2005

I shall be brief because this is a time-limited debate. I shall confine myself to three points. First, Mr. Fisher made an important point. It is certain that errors will be made with regard to individuals. One of the problems about the Bill is that the individual will not be well placed, perhaps not placed at all, to identify the fact of an error or to challenge it. The advantage of the proposal made by my hon. Friend Mr. Malins is that it will make it possible for a citizen, using the procedure set out in new clause 4, to identify errors of fact made in relation to them. Once an error of fact has been identified, corrective action is possible. I say to the hon. Member for Stoke-on-Trent, Central that new clause 4 goes directly to the anxiety that he has properly expressed.

Secondly, looking at the wide powers set out in clause 25(4), one has to accept that, in reality, they give the Secretary of State of the day the power to amend at will the report of the commissioner. Phrases such as

"would be otherwise contrary to the public interest," and

"prejudicial to . . . the continued discharge of the functions of any public authority" are so wide that there are few Secretaries of State who could not bring their own prejudices within the parameters of those phrases. And of course the discharge of that amending function is not reviewable, which takes one back to new clause 4. If new clause 4 is accepted, individuals—whether they be Members of this House or someone else—will be able to say, having obtained that information, that the exclusion of material from the commissioner's report is unreasonable and does not fall within the language of this Bill and either raise it as a parliamentary matter or seek judicial review of it. That is particularly important when one reflects that the commissioner might well wish to use his annual report as a vehicle for criticising the Government's use of the scheme. It would be intolerable if the Secretary of State was able, by using the language of clause 25(4), to delete that criticism.

My final point is that my own preference, and one that I commend to the House, and through this House to the other place, is the approach recommended by my hon. Friend the Member for Woking, namely, to approve new clause 4 or something like it and to amend the language of clause 25(4) broadly in terms of amendment No. 38, which is in this group, so as to remove the offensively wide language on which I have addressed the House.

As time is pressing, that is all that I wish to say, although were time not so limited, I would wish to say a lot more.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I rise to oppose the new clause and amendments and to speak to amendment No. 56, which I think, when I explain it, will give some significant comfort to hon. Members, especially those who espouse the provisions of new clause 4. Amendment No. 56 in substantial measure covers exactly the same ground as new clause 4, although there are qualifications, which I shall come to in a moment.

Before I deal with the new clause and amendments and the questions that I have been asked—to the extent that I am able to answer them—it is important that I put on record the position in relation to the Government's response to the Joint Committee on Human Rights report. I am disappointed at the way in which hon. Members have implied in the House that the Government were dilatory or that there was some attempt not to make the information available to Members of the House at the earliest possible opportunity. I might say that those observations were made to some degree in bad faith because no one asked me about the matter at any point or made any inquiries about the true circumstances.

The fact of the matter is that my hon. Friend Mr. Fisher is correct. The Chairman of the Joint Committee on Human Rights requested that the Home Secretary respond to the Committee's report within seven days and named the date of 7 February. The letter that was sent from my right hon. Friend the Chairman of the Joint Committee on Human Rights was dated 26 January, and it arrived at the Home Office and was received by the Home Secretary on 28 January. He responded by 8 February, which was one day out. Bearing in mind the fact that the report was received two days after the date of the letter that accompanied it, I do not think that that is a matter of serious criticism.

I think that all hon. Members have now had access to the letter, and they will see that its final paragraph contains an appropriate request to the Chair of the Joint Committee that with her permission, which was sought by implication in the request,

"it would be helpful . . . to make this reply available to the House for the remaining stages of the Bill on 10th February."

That permission was given yesterday, and the letter was deposited in the Vote Office before 10 o'clock this morning. Nothing could have been done in any sense any quicker, and I do not think that there can be any criticism of the way in which the Government and my right hon. Friend the Home Secretary have acted in relation to this issue.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

The Committee set the date of 7 February, but it would not have been aware that we would debate the Bill on Report so soon. Obviously, the Committee has not been given sufficient time to report to the House about whether it considers the Home Secretary's response satisfactory.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I thank my hon. Friend for that contribution. All those observations are truisms, but the workings of the Joint Committee on Human Rights are matters entirely for the members of the Joint Committee, and the timetable for their work and the priority that they give to their work are matters entirely for them. The Bill has been published in draft form—substantially the same form as at present—for some months now. I make no criticism of the members of that Committee. Indeed, I was a member of it at one stage and served with some members of the current Committee for whom I have the greatest regard. However, it cannot be a criticism of the Government that a Committee of the House adopted a certain timetable—that is the only point that I make.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am a member of the Joint Committee. Of course, the drumbeat of Home Office legislation that touches on human rights matters is so great that we are running behind the Government. That is the difficulty that this huge volume of legislation places on us, as well the constraints that lie within it. It is in the Government's gift to make reasonable the passage of Bills and the deliberation of Select Committees. That is what all this is about.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I hear what the hon. Gentleman has to say, but I remind the House that, before the Government's incorporation of the European convention on human rights into the law of this land, there was probably no need in the House for the Joint Committee on Humans Rights.

Photo of John Bercow John Bercow Conservative, Buckingham

I am afraid that that simply will not do. I have the very highest regard for the Minister's ability, as he knows. Moreover, I do not on a daily basis make partisan points for the sake of it—when the Government are right, I am quite happy to say so—but what we have just heard in relation to this matter from the Minister is a very shabby piece of buck-passing. No hon. Member on the Floor of the House is suggesting for one moment that the timetable for the activities of the Joint Committee, or those of any other Committee, should properly be a matter for the Minister. Does the Minister accept that one is entitled to say that the Government should operate on a joined-up basis? If the Minister did not know what the Whips Office had in mind when scheduling the Bill's consideration on Report and Third Reading, he certainly should have done. It should have been his priority to do everything that he could to ensure that the Joint Committee's report was available for consideration by Members well before today's debate.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I do not want this to turn into a mutual admiration society, but I have great regard for the hon. Gentleman, too, although he is perhaps inflating the debate on this issue slightly. The report of the Joint Committee on Human Rights has been available to hon. Members for some time. Nothing that the Government have done has interfered in any way with hon. Members' ability to access the report. I thought that I would be able to cover this matter in a few minutes, but it has turned into a mini-debate of its own. However, hon. Members will agree that some comments that were made strongly implied that the Government delayed their response to the report and produced it at the last minute. I was merely pointing out that the Government responded within the Joint Committee's requested timetable—albeit one day out—and that a further day's delay was required before the Joint Committee gave permission for the letter to be placed in the Vote Office.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I never attribute bad faith to the Minister—quite the reverse—but now is the time for frankness. Does he think that it would have been helpful to the Standing Committee if it had had the benefit of the report during its deliberations? Does he also think that all hon. Members would have benefited if the Government had produced their report a little earlier? I am sure that he will be frank and say yes.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I will be frank and say yes. It would be nonsensical to say anything but that that would have been helpful. I am merely explaining to the House how events arose because although there was a clear implication that timings were manipulated, they were not.

In the few minutes that remain, may I try to reassure hon. Members who want to be satisfied that the Government intend the commissioner to work with teeth and be a formidable person? The Government's response to the report of the Home Affairs Committee made it clear that we accepted the recommendation that the national identity scheme commissioner should have a broader oversight of the whole scheme, which is provided for by clauses 24 and 25. The commissioner's remit will thus include examining the uses to which ID cards are put, the dealings of all recipients of information held on the register and the administration of the issuing of cards.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The commissioner will have no relationship with the Scottish Parliament and its Committees under the Bill's structure because we are not considering a devolved matter. There would be no reason for the commissioner to have a direct relationship with the Scottish Parliament.

Photo of Alex Salmond Alex Salmond Parliamentary Leader (Westminster), Spokesperson (Constitutional Affairs; Treasury), Leader, Scottish National Party

The Minister said that one aspect of the commissioner's remit will be examining the uses to which identity cards are put. Many of the uses to which they will be put in England will not be those to which they will be put in Scotland. How can the Minister maintain that that is of no relevance to the Scottish Parliament and its Committees?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I am not suggesting that the commissioner's actions will be of no relevance to the Scottish Parliament and its Committees. The hon. Gentleman asked me a specific question to which I gave a specific answer.

Hon. Members posed questions about the commissioner's ability to listen to specific complaints. The commissioner will of course be able to listen to specific complaints and will have a strong advisory role to the Secretary of State. I understand that there is a clear and established process if there are errors in the issuing of driving licences, which eventually ends with the possibility of judicial review, as Mr. Allan pointed out. The commissioner will be able to take individual complaints from people who are affected by the process and from people whose attempts to correct information on the register were not successful.

New clause 4 relates to the status of reports and information from the national identity scheme commissioner in respect of the Freedom of Information Act 2000. The most important aspect of the new clause is that subsection (2) would make the commissioner a public authority under that Act. Schedule 1 of the Freedom of Information Act lists all public authorities for the purpose of the Act.

I am grateful to Opposition Members for raising that. They are no doubt aware that it is not strictly necessary for the Bill to be amended because it is possible to add to the list of public authorities by order. The Government could do that later, which was our intention. However, as dealing with that important issue in the Bill has merit, I accordingly tabled Government amendment No. 56 to do just that. I must, however, reject subsections (3) and (4) of the new clause which relate to Freedom of Information Act exemptions for the formulation of Government policy—

It being fifteen minutes to Four o'clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House divided: Ayes 126, Noes 233.

Division number 82

See full list of votes (From The Public Whip)

Question accordingly negatived.