My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
As your Lordships will be aware, I never lose an opportunity to ingratiate myself with the Government. Here I saw an easy opportunity to help them with the suggestion I make in Amendment No. 38A to leave out the words:
"or anything the disclosure of which would tend to reveal such data".
The meaning of those words was not immediately clear to me. I therefore looked at the Explanatory Notes on clauses and found the following, which I shall quote for the benefit of noble Lords who do not have this document in front of them:
"Subsection (6) ensures that information may not be required by regulations under this clause unless it is for statutory purposes of the scheme as set out in clause 1(3) and consistent with the recording of the registrable facts. This is to ensure that there is no expansion in the scope of information that must be provided by individuals without new primary legislation".
Maybe some of your Lordships would like me to read that again in order to make it absolutely clear, but I will refrain from doing so.
I would be happy to give the noble Baroness, or the noble Lord, Lord Bassam, the opportunity to explain with their customary lucidity the words that I propose to leave out. I beg to move.
I am grateful to my noble friend Lord Peyton for tabling the amendment. As he points out, clarification would be helpful. This subsection was tabled by the Government at a late stage, on Report. They did that in the sense of being genuinely helpful to another place, in trying to introduce further protections into the Bill. We debated the particular subsection at the end of last Wednesday, but I did not then raise my noble friend's point. My amendments suggest a different issue, so I am grateful to him for giving the noble Baroness the opportunity to clarify the matter.
I too am grateful to the noble Lord, Lord Peyton. His amendment will, at least, elicit clarity where there is, presently, something short of that. However, I am inclined to think that it doubles back on itself, and will reduce the protection of the citizen vis-à-vis personal data. We shall hear in a second who is right.
I assure the noble Lord, Lord Peyton, that there is never a reason for him to seek to ingratiate himself with the Government. His stock, as all noble Lords know, is already incredibly high.
The noble Lord's amendment touches on the drafting of Clause 1(6), which I understand is to enable us to have an opportunity to clarify the situation. Clause 1 was really designed to prevent any number being added to the national identity register—such as a police national computer reference number—which would tend to reveal sensitive personal data. The noble Baroness, Lady Anelay, is right to say that we did that in an attempt to respond to concerns helpfully.
We touched on the issue of sensitive personal data in the last group of amendments on our second day in Committee on
The "registrable facts" set out in Clause 1(5) may look like a long list, but they are all relevant in helping to identify an individual, and will allow cross-referencing with other departments' databases during the application process. Holding the numbers on the register, as listed in paragraph (4) of Schedule 1, will also make it easier to derive joined-up government benefits from the identity card scheme. If I may give an example, it might be useful, in relation to a benefit or pension application, for the Department for Work and Pensions to be able to check someone's national insurance number against their identity card.
The Bill was amended on Report in another place by a government amendment to respond to a point made and taken up in Committee. There had been a number of questions raised about the need to ensure that information about criminal records would not be held on the national identity register. The Government have always made it clear that they do not intend to hold medical or criminal records on that register, and the Bill achieves this by linking the statutory purposes of the scheme at Clause 1(3) to the registrable facts as defined at Clause 1(5). These registrable facts do not cover criminal or medical records, other than any voluntary information recorded at the request of the cardholder as allowed for at Clause 1(5)(i) which might, for example, include organ donor status, or matters of that sort.
So "registrable facts" can be amended only—and I emphasise "only"—by further primary legislation. Therefore, the Bill provides a major safeguard against claims that the scope of the national identity register might be expanded in the future without proper parliamentary scrutiny. Thus it would not be possible to add criminal or medical records to the "registrable facts" at Clause 1(5) by secondary legislation. Nor would it be possible to add criminal or medical records to the list of items in Schedule 1 by secondary legislation, because Clause 3(6) requires that anything added to Schedule 1 is consistent with the statutory purposes and those, as I have just said, link back directly to the "registrable facts".
However, a potential concern was raised in the other place that the Bill did not provide adequate reassurance that information relating to numbers would not be held that could lead to conclusions being drawn about a person's criminal record. Clause 1(5)(g) covers,
"information about numbers allocated to him for identification purposes and about the documents to which they relate", and the concern was that this might conceivably be used in the future to add the police national computer—the PNC—reference number to an individual's national identity register record. While that would not provide evidence of an individual's criminal record, it would clearly suggest that he or she had one. It was to avoid that scenario that the Government amended the Bill so that it would be impossible to add to the register a number that might tend to reveal information relating to a person's criminal record, or indeed any other "sensitive personal data" within the terms of the Data Protection Act 1998.
"Sensitive personal data", as noble Lords know, is not limited to criminal records but is defined in the Data Protection Act and covers a number of other issues, including the racial or ethnic origin of the data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, as well as his physical or mental health or condition. There could not be a complete exclusion of "sensitive personal data", or anything tending to reveal such data, as some information that could be apparent from, say, a photograph, might easily reveal "sensitive personal data" such as racial or ethnic origin. An identity card with a photograph of a man or woman wearing a clerical collar would, for example, tend to indicate their religious belief, although perhaps not their denomination.
Criminal or medical records or political opinions do not come within the ambit of the "registrable facts" listed in Clause 1(5) and so could not be added to the list of items that may be held on the national identity register and are listed at Schedule 1 to the Bill. However, the Government wanted in addition to put beyond doubt that it would also not be possible to add to the register in the future any reference number which of itself was simply a number, but where its existence could tend to reveal an item of "sensitive personal data".
Amendment No. 38A would risk narrowing the safeguard that was introduced in another place by removing the words,
"or anything the disclosure of which would tend to reveal such data".
I know that is not the noble Lord's intent, but it has given me an opportunity to give what I hope is a comprehensive explanation about why we think the safeguard is necessary. It works and it seemed to us to be capable of reassuring people who had genuine concerns that inappropriate information would be listed.
If we are to achieve our objective of providing a clear reassurance that no numbers could be held that either would reveal or would tend to reveal any "sensitive personal data", those words should stay in the Bill. I hope that with that explanation the noble Lord will be content. I have the pleasure of thanking him for allowing me the opportunity to explain all of that.
The Minister has now greatly confused me. If one of the main purposes of this card is the prevention and detection of crime, surely you really do need that number on the card. That would allow a policeman stopping someone in the street to look up and find out from his ID card that they had some sort of record that needed looking at. It may be an innocuous record—it may just be that they were found speeding or something. But it is does seem that the PNC number is necessary for that purpose and is in the interest of national security.
If those are the purposes of the Bill, why is this number excluded? Otherwise what purpose does the card have? At the moment only the great and the good are going to get it for the first 10 years and it looks like what we really need is a biometric index to the police national computer in order to do anything about purposes A and B of the card.
On a different issue, how does this subsection tie in with subsection (5)(h)? Suppose we are living in a world where the identity card is well used and supports a lot of commercial transactions. Suppose that I attend a Conservative Party conference and that fact gets into the register under subsection (5)(h) because my identity is checked at the door; then my political allegiance is on file. Suppose I visit a VD clinic and it similarly wants my identity as I go in. Suppose I am a Muslim and I buy something from a vintner. That again seems to be sensitive personal information. How are we going to exclude that kind of sensitive personal information from the register in any practical way?
I assure the noble Lord that the information that he has just referred to is not going to be a registrable fact so it is likely to be excluded. But the noble Lord is likely to show an identity card on the occasions that he has just indicated for the purpose of allowing those people to verify that he is who he appears to be. It is unlikely that that fact will be recorded anywhere but it is going to be a useful way in which identity can be confirmed.
I turn now to the PNC issue. The police do have a total facility to look at the information captured on the PNC and to verify whether anyone who they stop or have reason to have under observation—or any matters of that sort—actually appears on it. It is wholly unnecessary to have that number on the card.
I want to clarify something that is obviously very important and central to the Bill. The explanation given by the Minister was extremely helpful and clear but am I not right in saying that sensitive personal data within the meaning of the Data Protection Act 1998 does not cover data under paragraph (9) of Schedule 1? That is what many people in lay language would call sensitive personal data and some of it is the sort of information referred to by the noble Lord, Lord Lucas.
In addition to the occasions alluded to by my noble friend Lord Lucas, one fundamental aspect of the register is that the audit trail for the benefit of the individual card holder should be robust and complete. But if I understand the Minister correctly, she is saying that there is no way that the audit trail will be robust and complete.
I had not intended to intervene in this debate but, because I have a great interest in identity and in wine—the wine that we produce is certainly better than that which my noble friend may be acquiring—I thought that I would take the opportunity to read to your Lordships a ministerial interview:
"Is big brother watching you? To be more precise, did you know that government is building up a dossier on you? It's called by the harmless sounding name of National Integrated Database. What it means is that at the press of a button any civil servant can inspect just about every detail of your life, your tax, your medical record, periods of unemployment, children's school records, the lot! And that civil servant may happen to be your next door neighbour! Well recently there has been mounting concern over this powerful, even totalitarian, weapon that the computer revolution has put into the government's hand and the man who wields the weapon is the Minister for Administrative Affairs . . . Now minister, are you laying foundations for a police state?".
As your Lordships will be aware, that was Minister Hacker in "Yes Minister" many years ago. It was sent to me the other day and I had forgotten all about it, but I have received other letters asking whether the Minister can give an assurance that this measure will not form the basis for a police state.
I am very happy to give that reassurance. I understand why a number of noble Lords are concerned, so I shall try to deal with the matter as clearly as I can. In response to the noble Lord, Lord Lucas, I should say that subsection (6) applies only to numbers under Clause 1(5)(g); it does not apply to the rest of the information on the register, which may disclose sensitive personal data. So there is no direct link between paragraphs (g) and (h). Subsection (6) limits only the information set out in paragraph (g)—that is, numbers allocated for identification purposes.
It would be impractical to extend subsection (6) to paragraph (h) or any other part of subsection (5). The subsection was inserted in the other place because of the particular sensitivity of criminal and medical records. That was highlighted as an area where information might be given when it would not properly have been admitted in any other way. Therefore, I think that I can reassure the noble Earl, Lord Erroll, that the information contained in the register will be dealt with appropriately and, as I said earlier, the information contained on the PNC will be available in the ordinary way to the police. So, with the combination of those two, we are responding to the issue of numbers. The provision deals with numbers and does not seep into any other part.
It would be churlish and ungracious on my part if I did not say to the noble Baroness how grateful I am, as I am sure are other noble Lords, for the courteous and patient way in which she has steered us through some of the undergrowth of the Bill in the direction of understanding. I hope that I shall not embarrass her if I say that the way in which she handles such points is a lesson to her colleagues, and I hope it is one from which they will profit.
I remind the noble Baroness that it was never my intention to leave out these words but merely to call attention to the fact that they are not immediately comprehensible. If she would be kind enough to say that she will take another look at this subsection between now and Report, I shall be very happy to withdraw the amendment.
I am happy to say that we will look at the subsection again, although we think that it is fit for the purpose. But I am happy to do that and, if we can make any improvements, we will come back with them. However, we think that it is sound.
In moving Amendment No. 39, I shall speak also to Amendments Nos. 82, 83 and 84. The purpose of these amendments is to ask the Government to set out clearly the number of names we will be required to register on the national identity register. As my noble friend Lord Peyton has rightly said, the noble Baroness, Lady Scotland, is trying to help us find our way through the undergrowth of this Bill. The difficulty we find in debating it arises because so much of this Bill is left to statutory instrument, because it is a skeleton—an enabling Bill. It means that we often have to write in parts of the Bill in order to get an answer from the Government about what will happen next.
Clause 1(7)(b) requires the recording of,
"other names by which he is or has previously been known".
The difficulty, I find, is in knowing just what kind of information the Government are trying to capture and what guidance there will be for applicants about how extensive a list of names they should supply. For example, in my life I have been known by my maiden name, my married name, and am currently known by my name in this House, Baroness Anelay of St Johns—and perhaps something not so polite on occasion. In my amendment I want to direct attention to the name by which I am legally known, and ask whether that should not be the basis for registration.
I notice that sometimes in this Bill the Government seem to ask us to register information of which we simply will have no knowledge. For example, what if I am known by a name about which I know nothing? It might be a very nice nickname. Some people know their nicknames very well; what about the Deputy Prime Minister? Does he have to register "Two Jags" in the national identity register? Perhaps he does. Also, we may commonly be called by names by those who simply misunderstand our names. I am the victim of that. The noble Baroness, Lady Scotland, is always absolutely correct in her pronunciation, but I am more commonly known around the House as "Lady Annaly". Those who have been here since before 1999 will know that that was the name of a gentleman who is very different from me, and who had to leave this House in 1999 because of this Government's changes. When I came to this House I was not allowed straightforwardly to call myself Lady Anelay, because Garter told me that people might confuse me with Luke Annaly. I could not believe that he was right, but he is. I do not want to have that confusion on the national identity register, if and when my identity has to be declared. This looks like a light-hearted amendment, but it tries to get to the kernel of what kind of guidance the Government will give us in establishing our identity. I beg to move.
I wish to support this amendment. It seems to me that without it a great deal of the provisions in Clause 1 and elsewhere in the Bill will not be effective. We have to make sure that enforcement is supported by a proposition that the changes made should be notified as legal. That is what this amendment, and those grouped with it, endeavour to enforce. I hope that noble Lords from all parts of the Committee will support it.
I was just thinking about the point made that we do not know what the Government intend. We are trying to tease this out through questioning, but if it is not in the Bill any subsequent government may change it to whatever they like. It is probably worth tightening up in order that it cannot later be expanded with unexpected consequences.
I support this amendment so long as it does not jettison us into further bureaucracy around people's names. One of the glories of British common law is that you can call yourself whatever you like, whenever you like, for any purposes barring fraud or deception. I like that and intend to call myself by several different names.
When I want to deal with junk mail, spam or whatever else and find out where it is coming from, I employ about 15 names to try to track down who has been spreading my details around without my permission. Beyond that, I have not yet come across a government database in which I can enter my name correctly. Since this is effectively compulsory for everyone, my plea to the Government is: can we please have a way to enter our names as they actually are and as we wish to be called, rather than being parcelled into little pots that are devised by people of limited imagination? Beyond anything else, I do not understand how someone of Chinese origin is able to get his or her name the right way round under most government databases. We need something flexible which addresses the fact that a name is very personal and that one wants to be addressed in the way that one chooses.
The noble Baroness, Lady Anelay, is lucky to have had only three legal names. I have had five. I was born Margaret Lane. I became Mrs Margaret Artiss, then Lady Margaret Artiss, followed by Lady Margaret of Mar. I am now the Countess of Mar. I was last Lady Margaret Artiss in about 1965. The Department for Work and Pensions still insists on writing to me in that name because it cannot cope with other titles. But I get my pension, so that is okay as far as I am concerned. If all those names have to go on the database, they will get muddled, as the noble Lord, Lord Lucas, said. I would appreciate just being called the Countess of Mar. There is no other, so I do not need Christian names.
I am in a pickle here, one which applies probably only to Members of your Lordships' House, who seem to change their names with monotonous regularity—at least those 92 of us who remain under those circumstances. Even so, it appears that when the late and much lamented George Brown wanted to take the title of Lord George Brown, Garter said, "You can't call yourself that because you will be muddled up with the youngest son of the Marquis of Sligo". The problem of lots of name changes is very particular to those of us who are here, but there is a serious point to it. It will be very irritating, as it is already, to be addressed as "Mr the Earl of", which I am frequently. I should think that almost every Earl here has been addressed like that. Computers cannot cope with this and as governments tend to get computer things wrong, the concept of a central database getting it even half right strikes me as remote in the extreme.
This is an important amendment, although I do not understand how it would work. Like other noble Lords I have been called all sorts of things in my post and in other ways—even by my colleagues and noble Lords opposite. But my favourite is "Lord Stod of Swin". I do not think that I would want to register that. Nevertheless, as I understand it, people will be able to change their names on the register if they wish. How will they prove that it is legal? As the noble Lord, Lord Phillips, said, you can call yourself what you like. If you can call yourself what you like without any legal document, how will you prove that it is your legal name? I find difficulty with that. Perhaps the Minister can deal with that in her reply.
Has the noble Baroness consulted the record of the discussion of the regulatory reform order which was supposed to reorganise the registration of births, deaths and marriages, to put them on computer, and of the difficulties that there were with people's names? Before deciding whether this will work, she would do well to look at that. The noble Lord, Lord Desai, was on the committee when we looked at that regulatory reform order, which failed for a number of reasons. The Government had not thought it through adequately. The move still has not taken place, but it will have to. The noble Lord, Lord Desai, pointed out that people from, I think, India put their family name first and their given name second, whereas other people, as in this country, put their given name first and their family name second. This can cause a good deal of confusion. It is very important that all the names are entered identically on all databases in all departments. Otherwise, it will be in a muddle, and not only for Peers.
Perhaps I could help the Minister. I raised the problems with my own name on the first day. I also drew attention to the fact that the name in the passport is generally accepted as the registered name. Over 80 per cent of people have passports, page 6 of which gives their full names, or, if you are ennobled or entitled, the full title. That may be a problem. In the case of ethnic minority groups, as I know from the time that I dealt with the Middle East and as Members of the Committee will be aware, in many families there is no such thing as a Christian name or a surname. The same problem arose when we debated a Bill for a particular kind of tax and the number of Patels that emerged from the woodwork made it impossible for anyone to identify them. For proof of identity in the international world, the passport is by far the best means of identification, but for other, secondary identification, it can be a birth or marriage certificate. Women who have married twice may change their names and use their original maiden names. When people decide to use their own working names separately from their married names, it can create a large number of problems. It would be helpful if the Minister could give some guidance on this. Although some light-hearted comments have been made, it is particularly important that the one thing that should be identified on an identity card is the person's name.
I shall arch over the point that most Members of the House become the younger sons of Marquises almost daily; in my case, I am called Lord Nicholas Crickhowell, which is wholly incorrect. I turn to another issue that I have only just spotted; namely, that subsection (7)(a) asks for our full names and subsection (7)(b) refers to,
"other names by which he is or has previously been known".
I thus toy with the difficulty of identifying the difference between the requirement to register a full name and to register a considerable variety of other names. Usually, I am never known by my first name, but I am sometimes asked to list all my names and then it appears. My wife complicates the issue. Her Christian name is Ankaret, but she is almost always known to her friends as either Ann or Annie. One of the reasons I changed my name on coming to this House was that she was totally fed up of being one of about 10 Ann Edwards in our local health service register. That poses the difficulty that will face us if we are asked to register other names by which we have been known.
It is absolutely clear that we must have some certainty about this matter and must understand what the Government propose to do about it. I would therefore like an explanation of why, in the most important part of the clause—subsection (7)(a)—we are asked to register our full name and then suddenly thrown into the realm of uncertainty by being asked to register a string of possible alternatives.
I had proposed to deal with this matter later, in the context of Amendment No. 81 tabled in my name. However, it may be convenient to the Committee for me to address the issue now.
I support the amendment. Members of the Committee have already highlighted categories of names to which the provision could apply—nicknames, pseudonyms, perhaps even citizen band handles. More seriously, it could even extend to all the combined username passwords used by individuals to obtain access to an extensive range of secure online services. As we all know, a whole variety of public and private organisations use that method as a means of verifying the online identity of their clients and customers. To that extent, it qualifies as personal information that would be of assistance in corroborating the identity of any given individual. Yet, as we are all only too well aware, one of the simplest ways to attract the risk of identity theft or fraud is to reveal either one's user name or password, let alone both. I merely flag that up as an additional area of concern in the context of the amendment.
My noble friend Lady Anelay raised an extremely important point. I shall be interested to hear how the Government respond to the use of the term "legally". Most of the names and the methods of naming people that have been referred to are certainly not illegal. Therefore, the word "legally" in itself does not add a great deal of clarification, but it rightly points up the issue.
Yes, it is me—sod's law. I have enjoyed this rather entertaining thrash round the issue of names, and important points have emerged from it. I was musing that in conversations in my house I can be known as dad, Old Joe, Steve, John, the noble Lord and so on, so there is a problem here.
My brief does not provide me with a response to that point. However, this is a serious point and I shall do my best to answer it. As the noble Baroness explained, this is a probing amendment. However, if we were to accept it as it stands, it would remove the ability to register other names or aliases, previous names, informal or stage names which have not been "legally" changed, although the noble and learned Lord, Lord Lyell, made a valid point in that regard. We have very good reasons for resisting the amendments as regards both customer convenience and the prevention of fraud.
The difficulty with the amendments is that there is—as has been rightly pointed out—no definition of a legal change of name. Although some individuals use a deed poll for that purpose by no means all do so. A significant number of people merely change their name informally. I suppose that is what noble Lords do in their various guises. The register has been designed to be flexible and to accommodate the fact that a number of people use more than one name. Harry Webb, for example, might be a little perturbed that he cannot be known on the register as Cliff Richard just because he has chosen to use a stage name. As the noble Lord, Lord Phillips, observed, I believe on Second Reading, and as has been said today, many Members of this House are known by more than one name or, indeed, title. Of course, it is not intended that nicknames or family names of endearment should be recorded on the register—so I am lucky there—and it might be embarrassing if they were. We need to apply a common-sense touch here. We need to record the names that people use in interactions in their day-to-day life in the outside world. Naturally, an indecent name would not be acceptable as an alias.
Amendment No. 83 would have a detrimental effect on preventing fraud. Identity fraud is a serious problem and can occur when people frequently change their name and address in rapid succession in order to steal an identity or to create a new and/or fictional one. Currently, there is no reliable way to trace how often a person changes his or her name. The ID card scheme could go some way to provide this extra security. The recording of previous names on the national identity register is useful in terms of the convenience of those who are registered—customer convenience. For example, if an individual gets married or just decides to change their name, and wishes to amend their record on the NIR, organisations will be able to verify the individual against their maiden name or old name or their new name. That is far more secure than a simple marriage certificate, which is not a proof of identity and is capable of forgery, and much better than the deed poll process where there is absolutely no assurance that you are the person on the deed poll.
In practice we intend to ask people as a matter of policy to provide a principal name that they are known by for all purposes—the name that they use commonly in the world at large, particularly with public and private sector organisations.
This is passport policy, which works well, and matches the aim to get people to provide a name that they use consistently in their relationship with government bodies.
In response to the noble Baroness, Lady Carnegy of Lour, I think that we have consulted the Registrar General and those to whom we need to talk about names on registers. To clear up the point, I shall drop the noble Baroness a note to ensure that we have done so. I would be sad if we had not because it seems an obvious thing to have done. We have consulted fairly widely, and the approach that we have adopted should work.
We want people to use the same name as that in the passport as that would make sense. I said that passport policy is that people should use the name in their passport, which is the name that they commonly use in everyday business. That is a sensible way to approach things.
I apologise for extending the debate but it is a difficult issue. Those who look in the Law Reports will find a case, Lyell v Lyell in relation to the 1997 general election. A vexatious litigant came to live in my constituency and changed his name by deed poll to Sir Nicholas Walter Lyell. He sought to fight me in the constituency using my name to cause confusion. Fortunately an injunction was issued to prevent it, but none the less he had changed his name by deed poll and was so known. However, there is a happy wrinkle because when his name appeared on the electoral register there was a misprint, and it came out as Sid Nicholas Walter Lyell.
I still have not understood the position. Perhaps I may give a well known example. One of my brother judges, Lord Justice Purchas, was always known as Bob Purchas, although his proper name was Francis Purchas. He is no longer with us so there is a certain academic influence in my question, but how would the Bill cope with that situation?
I shall try to pin it down. In those circumstances the person should register as Francis, but he could also provide the name Bob to the national identity register. We are clear that the name on the passport will be same as on the ID card. The name used for the purpose of registration is the name that people commonly use in their everyday business. We think that that makes perfectly good sense, and I am sure that that will be the case in practice, as with passports.
Will the noble Lord confirm that those issuing the passports will understand the name that we wish to use, and that the computers will be programmed to accept those names?
I am sure that that will be the case. I hesitate to say it, but I believe that the passport service is one of the most efficient and effective IT-based organisations in the UK. It has a tremendous reputation, and many of your Lordships would attest to that. History shows that it had some difficulties, but I am convinced that it will work well. The same approach that is used by the passport service will work for ID cards.
The Minister said to the noble and learned Lord, Lord Ackner, that his fellow judge, the late Francis Purchas, would have to put down "Bob". The noble Lord earlier said that we do not have to put down nicknames. So where do nicknames come, and where do shortened names come? Where is the dividing line? He has, in effect, given two mutually exclusive answers.
The Minister said, quite reasonably, that the name should follow the name on a passport. There is a problem with that, however, because not everybody has a passport. What do we say to those people? That they should put the name on the national identity register that they would use on a passport if they applied for one? It gets very difficult. I am still worried about the basis of legality. I do not want the right of people who want to be known by a different name, perhaps every year, to have that right removed.
I am grateful to all noble Lords—about 13, I think—who have taken part in a debate on an amendment which I had intended to lead to some clarity. I think it has just opened another can of worms. I certainly do not intend to examine that can of worms any more today. I shall consider what we are to do before Report.
I was grateful to the Minister for his response at the end to my noble friend Lord Lucas. I understood him to be saying something that he had not quite said earlier: that we may elect what names we put down and will not then be penalised for leaving out names. If that is the case, then it sounds a very common-sense way forward. I note that the Minister said that this is intended to have a common-sense touch. He then went on, however, to say first that people should register names they use in their interaction with day-to-day life, and then the names to be used consistently in contact with public bodies. Those might be different.
There has been some confusion. I hope that the Minister's closing remarks to my noble friend Lord Lucas will mean greater clarity. If we find that the Government think again on that point, obviously we may have to return to it. I beg leave to withdraw the amendment.
This probing amendment will remove "gender" as a reference to any individual's identity within the context of the national ID register in Clause 1. The purpose of this amendment is to question the Minister how the use of gender information will sit with the Gender Recognition Act 2004. For example, will the information be entered as the gender on the birth certificate, or as the gender on a gender recognition certificate after a sex change? Will and should both pieces of information be kept? Could it not be an infringement of personal data, considering the large number of uses Her Majesty's Government are proposing the database and cards be used for, as well as the potential function creep in the future?
Section 10(1) of the Gender Recognition Act 2004 states:
"Where there is a UK birth register entry in relation to a person to whom a full gender recognition certificate is issued, the Secretary of State must send a copy of the certificate to the appropriate Registrar General."
Can the Minister confirm whether the onus would be on the Secretary of State to inform the ID register of any gender change, as it is in the 2004 Act, or on the individual involved? Would the Government pay for the change of information? Will the use of gender as an identity reference adhere to the principles set out in Section 21 of the 2004 Act with regard to foreign gender change and marriage? Can the noble Lord clarify whether they accept gender change as having occurred in approved countries or territories only as agreed under the Gender Recognition Act?
It is all very well for the Government to argue that this is an enabling Bill, but we need to be clear from the start how it interacts with current legislation. I hope that the noble Lord can shed some light on the issue. I beg to move.
Amendment No. 40 would leave gender out of the list of registrable facts. Gender needs to be included because it is mandatory for International Civil Aviation Organisation standards for travel documentation. It is included in passports and needs to be included on ID cards. It is also a fundamental piece of standard identity information. Knowing someone's gender immediately means that any search to find an individual's record is reduced by 50 per cent.
We completely understand the concerns of transgender people, and our officials have had representations from and discussions with Press for Change, a representative group for transgender people. We accept that it would be much easier for them if gender were not shown on the face of an ID card. However, if we are to meet the standards for travel documentation, that will not be possible and we must recognise that the number of people in this category is relatively small. We have made it clear that there will be special arrangements, including strict confidentiality for anyone who changes gender, so that it is not possible for people who have no need to know to be aware that an individual is holding an identity card in a different gender.
Those with gender recognition certificates will, of course, be entitled to a passport and an identity card in the acquired gender, as it is legally recognised. However, we believe we need to go further, so it is intended that those living what is called a dual-gendered life will be able to have a second, plain card in the acquired gender. That would not be valid for travel but would allow that person to use the identity verification service in the acquired gender. There will need to be solid evidence that the person suffers from gender dysphoria—the condition that defines a person as transgender, moving from one gender to the other—rather than is a transvestite. We shall ensure that staff training and facilities will be designed to be as discreet and as sensitive as possible to the needs of such people, which, of course, the United Kingdom Passport Service is already in dealing with them.
I understand that the situation has not changed from the 2004 Act. The way in which that works will be transposed into this legislation. We are grateful to the noble Baroness for tabling the amendment but, having heard what I have said, I hope that she will feel able to withdraw it.
What the noble Lord has said could be very useful depending on the name that one uses. I have always worried about choosing whether to include a title in the registered name on a card. As people have preconceived ideas, one way or the other, I have a credit card with my title on it and one without it, depending on how I think a shop will react towards me. That is perfectly true and one would be very silly not to do that. Clearly there will be a facility to have multiple cards linked to one biometric record on the national identity register. Therefore, it could be useful for people who have a stage name and a real name—they have two public personae—and for celebrities to be able to travel semi-incognito with two cards with different names on the face of them, linking back into the same record in the national identity register. I believe it would be useful to allow that.
I want to make it clear that one cannot have two cards with different names. That may be what the noble Earl, Lord Erroll, was talking about. However, if one is a British national one can have a stage name, a maiden name and an ordinary name on the same card.
The noble Lord, Lord Selsdon, made another point. I do not think that the card will contain the gender of the individual, but I have a feeling that the photograph will give a pretty strong indication. In nearly all cases, I suspect that there should not be a problem.
I thank the Minister for giving us this new information on the special arrangements that will be put in place. I was glad to hear of the sensitive way in which these matters will be dealt with.
"if he has died, the date of his death".
The implication of the current drafting is that those who have died could be required, on pain of civil liability, to record that fact on the register. It could also conceivably mean that such individuals could be required to enter in the register the address of their current abode and their residential status, again on pain of civil liability. Quite how the Government anticipate that would be achieved by an individual who is no longer sentient is beyond me. Indeed, the prospect of the register holding data from beyond the grave about every cemetery, perhaps even about burials at sea, is interesting.
That aside, there is a wider issue. We can assume that the logic of the scheme is based on finding appropriate technological and IT solutions for an eventual population profile of 60 million or so individuals. As a matter of course, the amount of data held on the register will be subject to upward and downward variation as a function of demographic changes—migration, the attainment of qualifying age and so on. But the inference of the provision is that the register will hold the details of all the registrable facts, including biometrics, of all qualifying individuals, living or dead. That has implications for the IT architecture of the scheme. As a matter of course, it implies that the register has to be constructed to provide additional capacity for expansion in future, on the basis that, when someone dies, his registrable facts will be maintained. Indeed, this may be relevant to the caution sounded in KPMG's report about a potential shortage of data storage space. Moreover, as biometric identifiers are added to the system without limit, their reliability as unique individual identifiers will degrade.
I fully understand the underlying motive of the provision; namely, to make due allowance for what could be called The Day of the Jackal or the Lord Buckingham scenario. To that extent, I do not object to its inclusion per se. But it creates huge problems, not only in terms of the scheme's IT design, but also in terms of qualifying the data of the deceased for deletion on the grounds of relevance. Without useable criteria for the deletion of such records that satisfy the requirements of the Bill and those of the data protection legislation, the register and its data run the risk of becoming wholly unwieldy. Accordingly, there is a strong argument in favour of the drafting in Clause 1(7)(d) being tightened up. I hope the Minister can explain how it is intended that the scheme will operate in respect of those who have died, without giving rise to the difficulties to which I have referred. I beg to move.
I shall speak to my amendments in this group; namely, Amendments Nos. 42 and 45. The amendments are straightforward, but they yet again lift the lid on the Pandora's Box of difficulties that this Bill will introduce: in this case, concerning the precise arrangements following an individual's demise.
I speak first to Amendment No. 42. Clause 7(d) includes as a reference to an individual's identity his date and place of birth and, if he has died, the date of his death. The amendment would remove from the list of registrable facts the date of the death of the individuals. Inclusion of such a fact in the register poses several questions, the first of which could be phrased in this way: with whom does the duty to register such a fact lie? This matter was raised in another place, and despite an assurance by the Minister for Immigration, Citizenship and Nationality that it does not impose a burden on the individual's family or estate, on the face of it, that is exactly what it does. If the responsibility to inform the registrar of the date and fact of death does not rest with the individual's family, where does it rest? It was suggested in another place that the registrar of births, deaths and marriages will automatically pass the information on to the database after being notified by the estate of a deceased relative, as is the case under the current arrangements. But this does not answer the question in its entirety.
There are incidents where formal identification of the dead is a difficult and lengthy process. The terrible aftermath of the tsunami in south-east Asia is a recent example. In such cases, a formal pronouncement of date of death may prove impossible and, as the Bill stands, there is no provision in it to cater for such instances. There are no safeguards in the Bill to ensure that the bereaved family, already facing all the legal difficulties caused by the lack of a formal death certificate, will not be placed under the further administrative burden and given the further anxiety of notifying the national identity registrar.
A second question must also be answered: why is the date of death required, rather than the mere record of the fact of death? The Minister in another place admitted that this was a reasonable matter to examine, but no answers seem to have been forthcoming. If the purpose of the requirement is to close down the individual's file and preserve the integrity of the database, surely it is the mere fact of death, rather than its date, that matters. In the case of a fatal accident inquiry, for example, while it would be clear that an individual has died, the exact time, place and date may remain to be determined.
Furthermore, there are cases where the family of the deceased has to begin legal proceedings to gain a declaration of death, an example being the family of the late Lord Lucan. The Bill does not clarify whether the date of death can be a presumed date of death. The requirement to register a date of death therefore needs far more clarification. Without such clarifications and safeguards, the Bill will pave the way for yet more bureaucratic interference in what is already a fraught and difficult process for bereaved families who are waiting for formal identification of their loved ones or going through the probate process after the disappearance of a family member.
Amendment No. 45 would resolve the issues outlined above. It would protect the bereaved family from any more bureaucratic interference than would impede the handling of an estate and it would safeguard families from unnecessary and intrusive requests from those administering the database.
Paragraphs (b) and (c) of the new subsection raise the issue of the eventuality of someone dying without having provided all the registrable facts that would otherwise have been required. For example, he may have been ill in the few months that preceded death, and his address may have changed numerous times for reasons of treatment. Will the Minister agree, therefore, to the provision that would ensure that in no circumstances would the deceased's representatives or next of kin find that the grant of probate is delayed while those who are operating the register seek further information about the deceased? Will there be an undertaking that no new entries are made in the register in respect of deceased persons who are not otherwise registered as a result of actions of the registrar?
The issue of verification arises again in relation to the procedures on someone's death. What measures will ensure that the person on the death certificate is verified as the person on the register? At present, if you register a death in England and Wales, you are asked for the date and place of death, the name and surname of the deceased, the date and place of birth, occupation and address, as well as names and the occupation of the husband, where the deceased was a married woman or widow. In addition, the person registering the death is asked whether the deceased received a pension or allowance from public funds, and, if the deceased was married, the date of birth of the surviving widow or widower. This information falls well short of the registrable facts under the Bill, and to rely on date and place of birth alone will not prevent two people sharing the same name from the same town being confused with each other when the database is informed of one's demise.
What, then, is proposed to ensure that the right person is recorded as deceased under the register? Will more information be required when registering a death—passports, for example—and what arrangements are proposed if they lack these documents? Under current arrangements, a death must be registered within five days. A relative cannot possibly be expected to find all the registrable facts in that time, and with over 600,000 deaths each year in the UK, there is bound to be a time delay in verifying the deceased person and ensuring he is the right person in the identity register. What measures will prevent any risk of extending the cruel wait between a death and burial or cremation, due to verification difficulties?
These questions lead inevitably to one of the key issues regarding the entire scheme, which will recur throughout this debate—cost. What are the cost ramifications for any resultant change in the issuing of death certificates to meet the compatibility requirements of the identity register, and if there is to be any increase of issue of death certificates, will there be an undertaking that this will not be borne by the family?
Paragraph (c) of the proposed subsection introduces safeguards to ensure that the representatives of a deceased person do not face any civil penalty if they do not, or cannot, meet any requirements of the scheme to provide information on the deceased. It would be quite unfair if a grandson, for example, were penalised for not supplying information on the place of birth of his deceased grandfather. Can the Minister give a firm assurance that no charge or penalty will be raised against the relative or representative in such circumstances? I beg to move.
I am puzzled by Clause (1)(7)(b) as, in the context of the scheme of the Bill, it does not seem to make any sense. Clause (1)(3) says that,
"The statutory purposes are to . . . [provide] a convenient method for . . . individuals to prove registrable facts about themselves".
Dead men can prove nothing, and a dead man is not an individual, so how can the date of a person's death be part of an individual's identity?
My noble friend on the Front Bench referred to the current system for the registration of births, deaths and marriages. Is it the intention that, when a baby is born, the family have to go to the registrar of births, deaths and marriages to register the birth and also, separately, enter the baby on the computer? Likewise, when somebody dies, does the death have to be recorded with the registrar of births, deaths and marriages and also put on the computer? That seems the only sensible interpretation of how this is intended to work, but is that right? With this great system of national computers, surely it would be possible for the registrar of births, deaths and marriages simply to get the relevant facts from the national identity computer, or the other way round. Is it really intended that people should have to do both? I am interested in that, because it seems extraordinary that we cannot interrelate the two.
I have sat with some incredulity through debates on previous amendments, not understanding the purpose for some of the interventions and wondering why we were spending so much time on them. However, on this amendment, the noble Earl, Lord Northesk, and the noble Baroness, Lady Seccombe, have put forward some very convincing arguments, backed up by a short but telling intervention from the noble Lord, Lord Waddington. I hope that whichever Minister replies, they will give some serious consideration to the matter. As the noble Lord, Lord Waddington, said, it seems strange if the requirement is on individuals to provide the information, as it is manifestly impossible for them to do so after their death. It is strange, too, that the date of death is required.
The Opposition have made their arguments cogently on this matter—though that is something that I wish I could have said about the previous amendments, when the arguments were not quite as convincing. I hope that the Minister will give some sympathetic consideration to what is a very cogent and rational argument.
Is not the answer to the point raised by the noble Baroness, Lady Carnegy, that babies will be registered on a computer system that has been set up under the latest Children Act and that when that baby becomes 16 or 18—I cannot remember which—it will then be transferred on to the national identity computer?
This is not of course information that may be recorded in the register under Schedule 1. Presumably the Government, reasonably, want proof that someone is dead for the purposes of the register. The point has been reasonably made that while it may be possible to produce proof of death, the date of death is very much more difficult. One has only to consider the case of members of our armed services who are now at risk in many parts of the world. We may not know when and where they were killed, if that tragedy has occurred. If they have been fighting in the remoter parts of Afghanistan, a body may be found but we may not know the time of death. Similarly, if there is an earthquake of the kind that has recently occurred in the northern Indian subcontinent, we shall not know the time of death. Surely all that is required for the purposes of the Bill is proof of death, in order not to have the kind of register described by my noble friend Lord Northesk, which is one with an infinite capacity for perpetual growth. Perhaps the amendment that we have is not the right one to provide a solution; what we want is proof, not the date.
"'registrable fact', in relation to an individual, means . . . his identity".
We look then at subsection (7), which says:
"In this section references to an individual's identity", include the date of his death. But when you look back at subsection (5)(e) it refers to "his current residential status". I am not sure what the residential status is going to be of someone who has died. The drafting really does need cleaning up.
Echoing the noble Lord, Lord Williams, I recall two well attested cases, first of the Times correspondent in the Boxer Rebellion and, secondly, of a former Lord Bessborough, both of whom read their obituaries in the Times. When they called the Times to verify or to demonstrate that they were not in fact dead, on both occasions the sub-editor replied, "Before you go any further, where are you speaking from?". Clearly, it was a standard operating process at the Times to respond to questions of that nature in that manner.
I shall deal with the amendments in turn. Amendment No. 41 removes the date and place of birth, as well as date of death, from the list of registrable facts. One of the main reasons for holding details of date and place of birth is, fairly obviously, in order to differentiate between two individuals with the same name. I am sure noble Lords could imagine the confusion of trying to differentiate between all the John Smiths in the United Kingdom without being able to refer to the date of birth.
In addition, the International Civil Aviation Organisation requires that a valid travel document must show the individual's date of birth. If the date and place of birth are not held as registrable facts, this information will not be able to be printed on the face of the card. In those circumstances the ID card would therefore not be valid for travel. This would remove one of the main benefits of the ID card scheme, that of travelling within the EU using only the card without the passport book, which is how many people travel within the EU currently.
A number of the age-related benefits of the ID card scheme would be reduced by this measure. Without the date of birth printed on the front of the card, it would be no use in preventing the sale of age-restricted products—cigarettes and alcohol come to mind—to those not entitled to purchase them.
Amendments Nos. 41 and 42 would remove the date of an individual's death from the list of registrable facts. It may not at first seem necessary to include date of death, but it is important not only to retain records of people who have died, but also to include the date of death in the list of registrable facts and on the register itself. That is to prevent fraudsters from assuming the identity of individuals who have died. The noble Earl, Lord Northesk, made reference to The Day of the Jackal. We understand the impact that can have when he makes reference to that.
Amendment No. 45 seeks to clarify that the Identity Cards Bill places no—
I do not have an answer immediately to hand. The noble Lord may well have raised a good question, and I will give him an answer.
I assure noble Lords that the Identity Cards Bill contains no such powers. We are planning to link electronically with the General Register Office to obtain death notifications. This means that families will not have to be burdened with additional administration when a loved one dies. As soon as the agency is notified by the General Register Office that a death has taken place, the ID card will of course be cancelled, thereby preventing any fraudulent use of that card.
As with passports, next of kin will be requested to surrender the identity card of deceased family members. However, it is hoped that this information can be included in information provided by the General Register Office, so no unnecessary communication with the family is necessary at what I think we accept would be a very difficult time.
Where a relative has died abroad, however, and the death has been reported to local authorities, the agency will not be notified by the General Register Office. It will thus be in the family's interest to do so, to reduce the likelihood of the deceased person's card being used in a fraudulent manner. There is however no requirement in the Bill, or power to impose a penalty, if the family forgets to inform the agency.
The Secretary of State can require surrender of an ID card under Clause 13 and failure to do so could, in theory, give rise to a civil penalty. That power is important, given the history of misuse of documents belonging to dead people, but it would not be appropriate to impose a penalty on family members where there is no suspicion of abuse. The code of practice under Clause 36 will make that abundantly clear. The noble Lord, Lord Crickhowell, asked where that appeared in Schedule 1; I understand that it is in paragraph 5(c) of Schedule 1.
A number of other points were raised. The noble Earl, Lord Northesk, made one about the date of death being a registrable fact. I explained that it needs to be held on the register, but obviously it does not mean that if you are deceased you have to notify your death. That would just be nonsensical. Nor will there a duty on bereaved relatives to inform, as I also explained. Those cases where death is uncertain raise an interesting point. Here, it is intended that records on the register could be flagged if it seems possible that someone has died. However, a formal record of death would not be logged until there was certainty and a clear decision on that. On the specific point of why there would be a date, it can be recorded and will in some cases be highly relevant to the prevention of fraud—though it need not be. There is no legal obligation on anyone to provide it but, if known, it may well be recorded. I am sure that will most usually be the case. The noble Baroness, Lady Carnegy, ultimately answered her own question. It is obvious that babies will not be entered on the register, as 16 is the minimum age.
There is no obligation to notify the registrar of death, so there is no penalty against relatives who do not inform the national identity register of a person's death. Existing obligations under current law to inform the Registrar General of Births, Deaths and Marriages continue as they are. I think that has answered the majority of points raised in discussion.
I entirely agree, by the way, that the date of death should be held. It is only logical and sensible that it should be. Yet the noble Lord's argument for why it was useful was interesting. It would be useful for people implementing the cards to take a look at it. The argument is that it prevents fraudulent use of the card, when actually the card is linked biometrically. If the biometrics are totally secure, then no one else can use the card. It will be shown up the moment that they give their biometrics. In cases where it is not used via the biometric link, it is used with a PIN number. If that is being held to be secure enough for some other purposes, it is secure enough also for the fact that the chap is dead. If it is not secure enough for proving whether a person is dead, neither is it for some other purposes postulated elsewhere in the Bill. Logically, that is an inconsistency.
If it is to end up as a "flash and go" card, without PIN verification or anything like it, the fact that date of death is registered somewhere is irrelevant. You cannot get at that date until either the PIN number or the biometric is verified against the use of that card. So it suggests there is a loophole in the entire security provision around the card.
I do not want to make a meal of this, but the Minister cannot say that the draughtsmanship is felicitous. If one looks at Clause 1(3), one is talking there about an individual who may have a convenient method of proving registrable facts about himself. Clearly, when Clause 1(3) refers to individuals it is referring to living persons. If one then moves to Clause 1(7) and reads "an individual's identity", because there is nothing to show the opposite, presumably one is talking about a living person's identity. To then jump to an entirely different concept of what is going to happen after a person's death in Clause 1(7)(d) really is absolute nonsense. If you are going to deal with the question of what is going to happen after a person dies, whether that death should be registered and if so by whom, that should be the subject of an entirely different clause in the Bill. As it stands, what it is really saying is that a live person should register his death.
I am not sure that I heard the Minister apply his mind to an issue that causes me very serious concern—the requirement under the terms of the Data Protection Act to remove data from a database as and when it becomes irrelevant. I have no idea how the Government are going to apply the criteria to that test, and I seriously would like to know. I am not suggesting that the Minister deal with it now, but if he could guarantee to write to me I would be most grateful.
Of course I will happily write to the noble Earl on that point. The wording is consistent. If the noble Lord, Lord Waddington, looks at Clause 1(3), he will see that the registrable facts are about individuals in the United Kingdom, and they are living persons for most of time for which we are going to be collecting registrable facts. That wording is consistent and follows through with the wording referred to by the noble Lord in subsections (5) and (7) and in the schedule. I will happily spell that out in greater detail in correspondence if it helps the noble Lord to better understand it and follow it through. We are happy with the way in which this has been worded. Of course, as we always do in these matters, we go back and question it to ensure that we have certainty; and there is a consistent thread in it. I am grateful to the noble Lord, Lord Waddington, and others for having raised their concerns, because if they are concerned clearly there is some uncertainty in their minds, and we need to ensure that there is clarity. The Bill needs to work, we want it to work, and it will work. I am sure that noble Lords want it to work as well.
No, two registrations do not have to be made. The GRO will inform the agency, so there is only one necessity on the family to register the death.
Perhaps the noble Lord can help me, because not surprisingly I am getting in a muddle. Who has to produce the facts? Is it the individual? Or is it someone wandering around the streets? Or his uncle, his aunt, or his father? Presumably, someone has to produce all the facts. All the facts are listed in the Bill, and one of the facts is that he is dead. As the noble Lord, Lord Waddington, was saying, resurrection is not there for all of us.
I would have thought it was fairly clear that when the individual is alive it is down to that individual to ensure that the agency responsible for the national identity register is kept abreast of the registrable facts. Of course when that person ceases to be alive they cannot do so, and it will be for the GRO to ensure that the agency is advised of the death as it has been reported to it and recorded.
In relation to subsection (7)(d) are we not making a mountain out of molehill? The word "and", which precedes "if he has died", is important. That consequentially brings the identity of the person to a logical end, whether dead or alive.
I am grateful to all noble Lords who have contributed to this debate, not least for the sympathy that my arguments seem to have provoked in the minds of the noble Lords, Lord Foulkes and Lord Williams.
The Minister will appreciate that my original intention in tabling the amendment was probing in character. As I said in my introduction, I certainly have no wish to remove the provision per se; rather, it is my firm belief that the drafting here needs to be tightened up. Indeed, that would appear to be the tenor of opinion throughout the Committee. I find myself extremely torn. The responses that we have received on this issue have been unwieldy and cumbersome and have not helped to move the issue forward.
I certainly wish that the Minister might have responded more positively and sympathetically to the concerns expressed. My mind is torn, particularly because I do not deem this as a first-division issue. Nevertheless, in the absence of anything more constructive from the Minister I have no doubt that we will need to return to this issue on Report, and for the moment I beg leave to withdraw the amendment.
We turn now to the issue of whether DNA can, or should, in any way be part of the information on the register. The matter was raised in our first discussion last week, on Amendment No. 1, and I have no intention of rerunning that debate. I note that the Minister kindly wrote to noble Lords on the issue of DNA in response to a question raised by my noble and learned friend Lord Lyell of Markyate. The Minister said in that letter, which is undated:
"We have always been clear that biometric information taken under the powers set out in the Bill would be limited to 'external' characteristics, such as fingerprints and features of an iris. This is set out at clause 43(1) of the Bill and would not include DNA".
I know that the Government intend that to be reassuring but my difficulty is that Clause 1 is not even framed in relation to biometric information, which is actually defined in Clause 43 as referring to external characteristics. One has to ask why not. Should we not make it clear that this information cannot be added?
I have questions which relate specifically to matters that were put to the Minister last week and to which she has not responded in her letter. There may be good reasons why she was not able to do so. If she is not able to do so again today then perhaps she might write to me on them. Will the Minister confirm that, when fingerprints are taken, it is now technologically possible to recover DNA from that same sampling? I ask that because of the points that were put to the Minister by her noble friend Lady Kennedy of The Shaws, as reported in col. 978 of Hansard of
The Minister said that DNA is not included in the Bill and that there are no powers to take DNA samples, which is fine. But, as the noble Lord, Lord Phillips, pointed out, there is a power in Clause 3(5) to extend what is included in the Bill within the remit of Clause 1(5). As my noble friend Lord Lucas pointed out, it is clear that identity comes under Clause 1(5) and identity is comprised of physical characteristics that are capable of being used to identify somebody. What is DNA if it is not just that?
This is strictly a probing amendment through which I invite the Minister to respond, in particular, on the technical issue of recovery of DNA from fingerprints. I beg to move.
My Amendment No. 270 has apparently been left out of the groupings list, and it seems appropriate to include it alongside the amendment just moved by the noble Baroness, Lady Anelay. Amendment No. 270 seeks to add to the definition of "biometric information" in Clause 43 the words,
"but shall not include data analysing the composition of any external characteristic".
Members of the Committee will know that in Clause 43 biometric information is defined as information that,
"in relation to an individual, means data about his external characteristics", and so on.
Like the noble Baroness, I am simply probing in this amendment, because it is common ground that there is a great deal of anxiety around the Chamber about the prospects of placing highly sensitive data about all of us within the aegis of "biometric information". I am told, for example, that moisture left from a fingerprint can be sufficient to garner DNA information about the individual concerned. I suppose that another external characteristic would be hair and, again, I believe that it is possible to obtain a great deal of highly germane and sensitive information about an individual from a single hair. So my amendment is advanced in order to be sure that there is no intention to include any of that within the ambit of this piece of legislation.
I add one last point. This is one of the most obscure pieces of draftsmanship that I have had the misfortune to come across. But it is particularly unfortunate that, as the noble Baroness made clear on the previous occasion, Clause 1(5) is the key to this entire part of the legislation—that is, if anything is not within Clause 1(5), it cannot be within Schedule 1. However, I think I am right in saying that you will not see in subsections (5), (6) or (7) of Clause 1 any reference to biometric data or biometric information. That crops up only in later clauses and, indeed, in Schedule 1. As I said, I hope that the noble Baroness will be able to render reassurance in that regard.
I share the concerns of both noble Lords who have spoken, but I think that we are looking at this in the wrong way. I rather feel as though we are trying to stop the Thames by standing in the middle of it. The fact is that DNA data will be, if not directly part of this database, linked to it. The police will have an extensive range of DNA data. In a few years' time—I think that three years is the current estimate—when we are able to take and analyse DNA samples on a while-you-wait basis, DNA analysis will start to become part of everyday medicine so that we know to which diseases we are liable and how we are liable to react to particular drugs. It will become a very important personalising part of medical treatment and, on that basis, our DNA records will become extremely widely available.
With facial biometrics on the ID card, combined with high-quality cameras all over the country, we will be able to tell exactly who is where in which street at any part of the day. We are getting ourselves—for the very best of reasons—into a surveillance society where potentially the Government will know exactly what each of us is doing at any time. If we combine that with the information which will be available from commercial databases and therefore accessible by the Government based on RFID technology as that comes in, we will be absolutely pinned down whenever the Government reach the point of wanting to know what we are up to.
Rather than try to pretend that we can stop the march of technology, we should be looking at an equivalent of the Data Protection Registrar. We should be looking at a body which can operate on principles rather than detailed legislation, which can say where our rights to privacy and personal information really begin and end, and which, on that sort of basis, can control what the Government and other people do with it. To imagine that we can stop technological progress in this way is illusory. We should not think that gives us any safety, given the time scales we are talking about for identity cards in this Bill.
I have great respect for the views of the noble Lord, Lord Lucas, on all this, but does he not think that there is a difference between stopping the march of technology, as he puts it, and stopping state surveillance of us? They are two quite separate issues.
I do not think that all we are doing in this Bill is stopping one particular way in which surveillance might take place. Because the DNA databases will be there anyway, in the end they will be linked to. If you are looking for a rapist and there is a national DNA database within the medical system, are you going to deny the police access to that? No, you are not; for very good reasons, you will let the police have access to it. One way or another it will happen, and we ought to look at dealing with the consequences of the inevitable, rather than imagining that we can stop it from happening.
I heartily agree with the noble Lord, Lord Lucas; I think trying to behave like King Canute is totally futile. These things will change; perceptions will change in some crisis, and this information will be accessed. The one thing I think is very good about the Data Protection Act is that it deals with eight principles. We need to go back to legislating in strong principles, rather than trying to regulate a complex society, using rules that might work in simple systems but do not when applied to such complex issues as those we are dealing with here. We need to go back to thinking about principles.
I think the noble Lord, Lord Lucas, has taken us down a very dangerous road indeed. It may very well be that technology has proceeded, but the basic situation, as far as we as individuals are concerned, is that we belong to ourselves. That has always been a great principle of the relationship of the individual to government in this country. The road he has taken us along says that the very essence—because DNA is the very essence—of our individuality belongs to the state. That is the last thing I want to see. There may be cases where DNA is useful; perhaps it should be used in criminal cases, but most people—a huge majority—are not criminals. Therefore, it is not necessary for the state to have a DNA profile of every individual. For medical reasons, one would presumably give permission for the use of one's DNA data; that is no reason why the state should have it.
I believe that we are now getting very far beyond Nineteen Eighty-Four. I do not think George Orwell, the other Blair, could even have contemplated the uses to which an individual's personal property—that is, DNA—was going to be used to put him under control and surveillance. I know that this is rapidly ceasing to be a free country where the individual matters, but those of us who believe in individual freedom must, I think, stand up for the principle that we belong to ourselves, not to this or any other state. Indeed, in a previous debate, we were told that the identity card might be used throughout the European Union. Perhaps our DNA samples would also be available to all those officials. We may not be just talking about our own government, which we always trust to be reasonable—that trust in the future might prove to be misconceived. I hope that the noble Lord, Lord Lucas, will rethink his position.
The noble Baroness, Lady Scotland, believes that what we are talking about should be excluded. She said that in our first debate. She specifically said that biometric information would not include DNA. It seems that she is very mindful of the uses to which DNA could be put and, therefore, wants to reassure us that it will not be included in the biometric material that will be available to the Government. I thank her for that.
I support my noble friend's amendment. My noble friend Lord Lucas took a long look into the future when he said that at some time we would need further protective legislation. But let us come back to this Bill. The conclusion that I draw is that later in our proceedings we must strengthen the role and position of the registrar. We have touched on the subject previously, but this debate confirms the view that I had already formed; namely, that this is a subject that we must return to. Later in our proceedings we must find a role for the registrar that will enable us in this Bill to go as far as we can to deal with the problem that my noble friend has identified.
It is time that we had some common sense here. It is true that there are concerns about the future, but this Bill is not about Orwellian control or surveillance. That will not be the case. Technology is always frightening, but, on balance, the optimistic view of the world wins over the pessimistic view. Quite honestly, most people think that an identity card is a sensible, reasonable, workable way of dealing with today's problems of identity fraud and all of the related problems that come from the new global world that we live in. People are sensible. They understand it. To talk about Orwellian societies and controlled societies is not real. It is a common-sense measure that should be debated in common-sense terms.
I also believe that there is a principle here, not just a rule. People are entitled to have their identities protected and affirmed. That is a pretty powerful principle that I adhere to. I have no trouble with the Bill in these terms.
I am sorry, but it was. It would have been unthinkable 10 years ago that the Government should have a national database of fingerprints. In the same way, the noble Lord, Lord Lucas, made the point that even if we try to exclude DNA in the Bill, given another 10 years, it will be included by legislation that will add to the list in Schedule 1. The point made by the noble Lord, Lord Gould, is that we should put principles in the Bill that would safeguard some of that information because we will not get a chance to put it in when, in the future, Schedule 1 is altered to add DNA. Is that right?
My point would be there, although that suggests that 10 years down the line more legislation might be added. We are here and now. In addition, the language that some people have used about Orwellian control and surveillance is not common sense. We need to connect more with the reality of the Bill and what it is trying to achieve.
Before the noble Lord sits down, I should like to follow up what the noble Baroness, Lady Anelay, said. It would be extremely helpful for the Committee to know what the noble Lord, Lord Gould, thinks about these two amendments, which have not mentioned Orwell or any of the other stuff.
I was responding to the comments made in relation to Orwell and surveillance, which seemed to me to exaggerate unnecessarily people's fears about the Bill. That is my point. In debating these kinds of measures at this time, it is important to retain a sensible, realistic and common-sense view of matters, which, for the most part, the noble Lord does.
In the context of Orwellian situations, I believe that the noble Lord was referring to me. Of course, I was commenting on the remarks of the noble Lord, Lord Lucas, in which he sought to take the use of DNA way beyond the Bill. I think that I was perfectly entitled to point out that what he was saying was not necessarily true or wise. It was reasonable to say that our DNA belongs to us and to no one else. However, I urge the noble Lord to understand what the Minister has said. She does not want to go any further. She does not want DNA material or information to be included in the Bill. That is what the amendment is about. If the noble Lord, Lord Gould, believes that the Minister is wrong and that she should go much further than she wants to, perhaps he will table an amendment, which we can debate fully.
I think I see where my noble friend Lady Anelay and the noble Lord, Lord Phillips of Sudbury, are coming from. As I understand it, they are coming from slightly different positions. My noble friend Lady Anelay wants the Bill to be clear and to result in an effective and efficient form of identity card. She perhaps feels that it would be premature to have a facility for measures that technically are not yet fully available for use. The noble Lord, Lord Phillips of Sudbury, and indeed his party, is probably fairly deeply sceptical about the wisdom of allowing the state to introduce identity cards at all. As the Minister knows, I come from the position that the time has come for the state, with the multitude of dealings that it has with individuals, to be absolutely clear about who people are. I have always thought that the card will be a terrible distraction. I would prefer a central register of data on people, forgetting the card, which has many emotional implications.
However, I have great sympathy with my noble friend Lord Lucas. If the object of the exercise is to have a really clear way of identifying people, we want the best biometrics that are available. I am prepared to believe that DNA is not yet sufficiently reliable, particularly in examples of taking it from moisture left by fingerprints, to allow its use. The arrival of the moment when it can be used should be very publicly known. I therefore believe that it should be introduced in some form of supplementary legislation when that time comes. For those reasons, I support my noble friend in saying that I would rather like it not to be included in the Bill. On the other hand, I very much feel that the more biometrics you have, simply by the definition of map finding, if you cross several lines, you will be more certain about where you are if they all cross at the same point. Although we have facial recognition, fingerprints and possibly iris recognition, DNA will undoubtedly constitute a huge step forward as regards certainty in knowing who people are. I do not want to see the possibility of it being excluded in the long run; although it would be a good idea to exclude that possibility from the Bill.
The noble Lord, Lord Marlesford, made a general remark about the posture adopted by noble Lords on these Benches. I make it abundantly clear that he is perfectly correct—we would rather not have the Bill at all, but we are making the best of it. We do not seek to wreck it but to make the best of it. That will continue to be the posture which we adopt.
I hope that I shall be able to put certain hares to rest. The noble Lord, Lord Stoddart, is for the third time absolutely right—and I concur with him—that DNA does not form part of the Bill. The Government do not want it, it is not included and no one need worry about it. I hear what the noble Lord, Lord Lucas, says about the way in which technology is going, and he may be right. I hear, too, what the noble Lord, Lord Marlesford, says about the accuracy that may attach to DNA in due course. It is already very accurate indeed. All of that may be true but that issue is not a matter for this Bill and it is not in the Bill. It is not included in Clause 43. I shall explain why that is so.
I understand that these amendments were primarily tabled to enable me to give the reassurance that the noble Baroness and the noble Lord seek. I shall try to answer the noble Baroness's specific question on fingerprints. Noble Lords who saw the demonstration of the new machines in Committee Room 4 would have seen the way in which fingerprints are taken. I believe that there is either a glass or Perspex part of the machine over which one puts one's thumbs and then one's fingers. It is not like the previous practice of rolling one's fingers in ink or some other substance whereby one could leave some DNA behind. However, it is right to say that in theory it is possible to obtain a DNA sample from sweat or skin particles which are left behind on a reader when a fingerprint image is taken. In practice such an image would not be so taken because you simply wipe over the top, the next fingers are put in and the reader underneath reads the data. The fingers do not actually come into contact with the material underneath. Those who had the advantage of seeing the new machinery in Committee Room 4 found that helpful. I shall try very hard to persuade the House authorities to provide another opportunity for noble Lords to see the new machinery before we discuss the matter further on Report so that everyone who is interested can try out the machines for themselves. If the machines are tried out by noble Lords in rapid succession, they will see how easy the process is.
DNA is not included in Schedule 1. There is no intention of changing that. Although DNA might be extracted from a fingerprint, that would require highly sophisticated forensic techniques. Furthermore, DNA does not provide a means of immediate identification, which is why we will be using fingerprints and iris image biometrics.
To put those issues finally to rest it may be useful to go through them. Amendment No. 43 specifically excludes DNA information from the description of physical characteristics in Clause 1. We have always been clear that there was no intention to record DNA.
The noble Lord, Lord Phillips of Sudbury, has already invited our attention to Clause 43. Biometric information is defined in Clause 43 as data from external characteristics. DNA is not an external characteristic. As such, there is no reason to rule it out expressly in the Bill. If the Government intended to take and record DNA, we would need an explicit power to take such samples. There is no power in the Bill to do so.
Amendment No. 270 would exclude from the biometric information in Clause 43,
"data analysing the composition of any external characteristic".
For that to take place we would have to have a sample, but as I said, there is no power to take a sample.
To reassure noble Lords, the Bill does not give the Secretary of State any power to take a sample from individuals to complete such an analysis. The powers to take biometric information are only those contained in Clause 43(1), which include the iris, face and fingerprints.
There would have to be new legislation. There is no order-making power in this Bill. We have gone through the framework created by Clause 1(5), which is the primary focus, and we then have the schedules. The opportunity for the Secretary of State to bring in new matters is confined within those parameters. That is why I said earlier that Clause 1 is important, and that we need it for the framework. In response to the noble Baroness, Lady Seccombe, who asked why we had it rather than just having Schedule 1, we need the two because the one defines the ambit of the other.
The Clause 11 power cannot be used, for example, by the police or other sources, as that power can be used only to verify information that the Secretary of State already has. It would not be lawful for the police to provide that information voluntarily because they are constrained by PACE and powers as to the purpose for which they can disclose DNA and fingerprint information. It is not included in the schedule as the Bill stands. It could not be recorded in the register. Even if it were added by affirmative order, there is no power in the Bill to take DNA samples, no power under Clause 11 and no power to give it voluntarily, as it is constrained by PACE.
I hope that I have made it clear. I understand the anxiety but that anxiety should be contained for another day because it is not based on anything in the Bill.
I think that there may be an illogical inconsistency. It is a clever way of defining external characteristics. Your iris is internal but it can be read externally. That is presumably how an external characteristic is defined. It is not something that is external to the body, but it can be read externally. On the other hand, hair contains DNA. I think that most people would define hair as a characteristic external to the body. You could therefore take a piece of someone's hair, or it could be shed, and that would not be internal to the body. If we are defining the external and internal characteristics by the way in which the sample is taken, then the Bill is possibly flawed. You are either permitting the inclusion of DNA by taking it externally, or excluding the iris because it is an internal characteristic.
The point is that we cannot take samples. We do not take a sample of the iris when it is recorded. If we take a strand from someone's head, that is a sample which cannot lawfully be taken under this Bill. You cannot take blood; you cannot take any other bodily fluid; you cannot take skin; you cannot take hair. The Secretary of State has no power to take anything that amounts to a physical sample. What you can do is externally record the facial characteristics, the iris and the fingerprints.
Clause 43 provides an adequate degree of certainty as to what external characteristics fall within the definition. As I say, I understand the reason for concern, but I hope I have made it absolutely clear that there is no basis for that concern within this Bill.
I thank all noble Lords who have taken part in this debate. Of course, it has shown that the Minister, I and other noble Lords are as one in trying to ensure that, as this Bill is drafted, DNA should not form part of the information that may be put onto the national identity register unless there is further primary legislation.
I am particularly grateful to the Minister for directing her answer specifically to my questions about the technological feasibility of DNA samples being recovered from the fingerprinting process which will take place within the context of the work at the enrolment centres. In the light of that, it may be convenient if I indicate to the Minister that I shall not be returning to this issue on Report. I beg leave to withdraw the amendment.
We have been dealing with the specific question of DNA, but are still left with the issue that the Bill is deliberately framed to give the widest possible powers to the Government in compiling, maintaining and identifying information that is usable on the register.
Clause 1(7)(e) is very broad indeed, referring to any physical characteristic capable of identifying a person—their race, perhaps. There is no direct reference to the limiting provisions of Schedule 1, and there should be. Without any limiting reference, it could include a person's height or weight, the fact that they had a tattoo on their right ankle, or the fact that they walked with a limp or were disabled. None of that would be ruled out by Clause 1(7)(e).
Is there not a chance that the police and security services, who we are told are the keenest proponents of this legislation, might find such information useful? "Ah, well," the Minister may say, "Clause 3(a) says that only information in the schedule may be included". That is not so tight, however, as a reference to Schedule 1 would be here. After all, Clause 3 also contains a provision allowing any information to be recorded that an individual wants, and which the Secretary of State considers practical and appropriate. Could I record, if I wanted to, that I am white, small—or, as someone else suggested, "of medium height"—or disabled?
What is more, the clause also allows the Secretary of State to modify Schedule 1—a subject to which we will return on later amendments. Schedule 1 as presently drafted offers more limitation. It seems to rule out the compilation of a race register, although I would like reassurance on that. In many government documents, are we not asked to provide details of our racial characteristics? Paragraph 7(c) of the schedule allows the inclusion of any information in connection with an application to be included in the register. Would that include an application for a driving licence which is a designated document in which someone might record a disability? Could that be used to build up a disability register, for example?
Sub-paragraph (e) is framed much too broadly. A reference to the schedule would help, but even that, as I have indicated, may be open to abuse. Will racial characteristics or disability ever be entered on the register? Will a person's height or weight ever be registered? If not, where in the Bill is the power to prevent a future government building up a race register, given the clauses in the Bill to which I have referred? I hope that the Minister can accept this tightening of the Bill and I look forward to her reassurance in reply. I beg to move.
I am grateful to the noble Baroness, Lady Seccombe, for tabling the amendment, as I believe it, or something like it, is much needed. The way the matter is drafted puts primacy on Schedule 1 rather than on Clause 1, which is the wrong way round. It seems to me that an example of what Clause 1(7)(e) would at present allow would be dental records. Someone's teeth, and all to do therewith, are physical characteristics. As the Bill stands, Clause 3(5) allows the Secretary of State by order to modify the information required by Schedule 1, so it would be open to him to say, "Now we want complete dental records of everyone with an identity card and everyone applying for an identity card". The fact that that is not at present in Schedule 1 is beside the point as Clause 3(5) allows extensions of information so as long as they are within Schedule 1. This is an important amendment and I would be grateful if the Minister could tell us whether we are right or wrong.
In relation to being right or wrong the answer is yes and no. The noble Lord is absolutely right to say that there is an order-making power, but that power is by affirmative resolution of both Houses. It would be possible, if my right honourable friend the Home Secretary, or any of his successors in title, were minded to come forward with an order for any category, to put that order before both Houses and for both Houses to determine what they think about such an extension. I can easily imagine the reaction if any of my right honourable friend's successors in title came forward with an indication on, for example, race, and I can anticipate what this House, if not the other place, would be likely to do with that.
The definition of information contained in Schedule 1 could be amended by affirmative resolution before any additional detail within the wider definition of physical characteristics could possibly be included. It must also remain within the statutory purposes of the scheme. This power was recognised by the Delegated Powers and Regulatory Reform Committee, which considered the powers sufficiently defined in extent and, as such, we and the committee do not consider that any further restriction is necessary.
The noble Baroness, Lady Seccombe, asked whether one could voluntarily record whether she was white, small and so on. That is dealt with in Amendments Nos. 67A and 68 which will be discussed later. But I can assure her that irrelevant information about such matters as height and race could not be recorded. Any amendment to add such physical characteristics to the schedule would be subject to the affirmative resolution procedure. Voluntary information can be recorded only once the categories of such voluntary information have been set out by order. Voluntary information can only be in categories in the order subject to the negative procedure.
I have already dealt with racial characteristics under the register because I have indicated that they will not be included. Racial and ethnic origins are not registrable facts as defined in Clause 1(5). The Government have no intention of changing that. Just to remind the House of what we all know, physical characteristics are not the same as racial or ethnic origins. One only has to think of Aryans, who come in different shapes, sizes and colours.
I hope that that has reassured the noble Baroness that these amendments are unnecessary. I understand why the noble Baroness wanted clarification, but I hope that she, and the noble Lord, can rest easy.
Would it not be sensible to record height on the card? If one is trying to identify someone with it, height is a sensible external characteristic that is known to the population just by looking.
In due course, we may have the joy of debating that matter if anyone ever wants to bring forward an order.
Before the Minister gives up on this amendment, I shall ask one more question. Does she think that one's state of health will come under "physical characteristics", for example, whether one is suffering from an illness or a disease? To take a highly sensitive and contentious issue, if one had an infectious disease, would that not be a physical characteristic?
I can envisage a situation where by negative order one was allowed to register voluntarily various physical characteristics relating to one's own health, so that in the event of going to hospital there would be a record of them, but I cannot imagine them being added on a compulsory basis.
The Minister is being her reasonable self, but I am a cynical old Liberal looking to the unreasonable Minister some time hence. I think that she is, in effect, saying that I am right in theory.
Only physical characteristics are capable of being used to identify a person, so I cannot imagine health status being compulsorily registrable. I can see someone wanting to include certain specific information under the voluntary forms of registration if the Home Secretary of the day allowed that category of information to be capable of being registered.
I am sorry to press the Minister again, but it is important to understand the ambit of the legislation. She spoke about what she would expect to be compulsory or voluntary. I am getting at the bare drafting. Am I right in thinking that, in theory, physical characteristics could include whether somebody had AIDS or a physical deformity or was in a particular physical condition that has visual characteristics—for example, to take an extreme case, smallpox? I am trying to get at the limits of this legislation.
I shall make a final interjection and promise to make no more. I wonder whether the Minister is not talking about visual characteristics, rather than physical characteristics. There could be a difference. Will she at least take this away and think about it a little more, because it is important?
I am quite happy to take it away and think about it. I am happy to write to noble Lords at greater length and, I hope, with greater clarity. I am willing to do anything that will shorten this Committee stage and help us to move on.
The noble Lord, Lord Phillips, has something of a point. We have to be careful about legislation creep. It worries me that people are being denied services because of their physical proportions. We read in the newspapers only this morning that obese people are being refused knee and hip operations. So there is something in what the noble Lord said. Perhaps the Minister might pay some attention to it, because, in the future, particularly since an identity card would give access to services, it may be of some importance.
I am grateful to those noble Lords who have offered support for this amendment. A point about height went through my mind. I think that we can all agree that as people grow older, they become smaller. Height details might not necessarily be up to date. I took note of what the Minister said. We will read it in Hansard and take it up with colleagues. I beg leave to withdraw the amendment.
I make it clear immediately that I do not intend to seek the opinion of the Committee on whether Clause 1 shall stand part of the Bill, although it is tempting, given that, after two and a bit days of debate, we seem to have uncovered more ambiguities in the drafting of the Bill than we have cleared up. It has normally been my experience in considering Home Office Bills that when I have tabled a huge number of amendments in Committee, I may not like the answers that I receive, but it is a matter of disagreement on a political principle. Therefore, I have to like it or lump it and divide and move on. On this occasion, one sees repeatedly that we will have to probe further in the future. I know that the Minister is doing all that she humanly can to shorten this Committee stage in the most proper way. I will not move my Amendments Nos. 54 and 56 to help speed up the process.
I have kept the question whether Clause 1 should stand part of the Bill on the selection list for the traditional reason of mopping up rather than seeking a Division at this stage. That offer not to divide on clauses will not necessarily live on until Report.
I have raised the question as a result of the comment of the noble Lord, Lord Phillips of Sudbury, during our debate on Amendment No. 1. The Minister dismissed his claims that the Government might be able to sell information from the register to private companies. We need to look further at that matter on Report, because of a story which appeared in the press this week. We know that stories in the press may not necessarily be based on the best research, but we need to find out whether they are true. An alarming report appeared in the Mail on Sunday that the DVLA is selling sensitive details about motorists to private car parking companies. I had thought that that was not possible under the provisions of the Data Protection Act. It now seems that the Road Vehicles Regulations 2002, which gave car park companies the right to find out about vehicle keepers, overrode any earlier restrictions in the Data Protection Act. Much of our concern arises from wanting to ensure that protections under the Data Protection Act will impose a rigour on this Bill. That is why I have raised the matter. Will the Minister assure the Committee that the Government will not issue any regulations under the provisions of this Bill that could enable information held on the national identity register to be sold or be made available for a fee to any commercial company unless the person to whom the information relates has prior knowledge and has given consent that that information should be revealed?
I am grateful to the noble Baroness, Lady Anelay, for initiating this debate. One of the problems with a restriction on the sale of data is that although, in theory, it should be done with the consent of the citizen whose information is imparted, I can foresee a situation where banks, building societies, supermarkets and so on universally require anybody who wants to use their services or access their goods to agree to the provision of information on the register to them under the Bill. Although provision of the information is voluntary in theory, it could be quasi-compulsory in practice. Will the Minister comment on that?
I shall make a couple of points arising out of ministerial responses. They relate to the purpose of the Bill. Its second stated purpose is the prevention and detection of crime. Much of the prevention of crime has to come from the ordinary citizen or employer. Why are we excluding such details as the police national computer number? Once a conviction is spent, you have the right to have those details erased. But it would be quite reasonable to have an index which flags up some concern that perhaps should be checked. The card would then have some purpose.
The trouble with the card is that it is going to be rolled out first to the ABC1s—to people with passports and driving licences, and to the better-off in society. It will not catch the disaffected people who are probably going to be the terrorists and the criminals. Their records and all 10 fingerprints are already on the police national database. The purpose of the Bill—the prevention and the detection of crime—would be better served if a biometric index were fed straight into the police national computer, without the need for the national identity card. If the national identity card is going to be useful for the prevention of crime, we should revisit what information will be included on it. Otherwise, we should index straight into the police national computer and think about ID cards later.
I shall add one small point about commercial access to the register. The noble Lord, Lord Bassam, told us that,
"there will be no open access to information held on the register. Private companies will not be able to access or buy national identity register entries. However, it is right to spell it out that only with the consent of the ID card holder will banks or other approved businesses be able to verify identity by checking an ID card against the national identity register".—[Hansard, 15/11/05; col. 1025.]
The noble Lord, Lord Phillips, earlier referred to this point. That is all fair enough. I merely observe that, as I understand it, the Home Office's procurement strategy documentation estimates that 265 government departments and agencies and 44,000 private sector organisations will have access to the register.
I do not necessarily suggest that there is any inconsistency here, but it is important that we are given the opportunity to understand the scope of commercial access to the register that the Government envisage. Is that the content of the procurement strategy documents?
It is probably generally known by the Committee now that I am totally opposed to this Bill. I would nevertheless like to thank the noble Baroness and her colleague for the way in which they have dealt with the amendments so far. We have got a lot of information, and I am particularly pleased that the use of DNA has been ruled out.
There is one thing that has not been answered, though I have raised it a couple of times: the position of the European Union. This is a national identity card, and that is why I was insistent that it should remain a national identity card. We have had the assurances, which we all accept and respect, about the data which can be added in. The problem is that if it were decided by the European Union that we should have a Europe-wide card, they would, without further reference to this House or this Parliament, be able to insert various requirements themselves, perhaps even one for DNA. That would be imposed on our citizens, whether they liked it or not. If I am not mistaken, the decision would come not under the basis of unanimity, but on the basis of qualified majority. Therefore we could have items imported into our system of a national register for the national identity card which our own Parliament, after proper discussion and assurances have been given by Ministers, did not want and particularly sought to exclude.
I know I have a reputation about the European Union, but this is a serious point. What we are deciding here, and the safeguards being made and given by the Government, could be overruled from outside these shores. Will the noble Baroness comment on that? It is of some concern.
I apologise to the House for not having been able to speak on the Second Reading of this Bill, but there is a question coming out of the debate on this Clause. Clause 1 is about the setting up of the national register of information. I am not clear whether the list of information that we have been debating that is meant to be recorded in this national register is there solely for the purpose of setting out the information which would be provided on the identity card, and whether the identity card is there to confirm somebody's identity, or whether this national register of information has a purpose that is separate from identity cards; that is, to bring together information which may be useful to the police and other people for other purposes, and may not necessarily be there purely for providing information to identify somebody on their identity card. It would be helpful if we could clarify what the purpose of the national register is.
Perhaps it would be convenient to deal with that point first, but I am happy to give the affirmation sought by the noble Baroness, Lady Anelay of St Johns, in relation to those matters and to confirm that, as so often, she is absolutely right. The assurance is there.
We have discussed in Committee the matter raised by the Lord, Lord Blackwell, but I am happy to repeat my argument. The statutory purposes of the register are two-fold. First, it will facilitate a convenient method by which individuals will be able to prove registrable facts about themselves—that is, to prove their identity. Secondly, it will provide a secure and reliable method by which registrable facts about individuals can be ascertained or verified where that is necessary in the public interest.
These statutory purposes have been expressed in an explicit manner following the recommendations of the Home Affairs Committee. We thought it important to make those two purposes absolutely clear. "Necessary in the public interest" is defined in subsection (4). It includes national security, the prevention and detection of crime, enforcement of immigration controls, enforcement of prohibitions, unauthorised working and employment, and securing the efficient and effective provisions of public service. Subsections (5) to (8) define registrable facts, and we spent time in the past three days in Committee discussing the definition of those details. Today we have talked about details of physical characteristics. Clause 1, then, established the national identity register, and that is rightly the foundation stone of the Bill.
The noble Lord, Lord Phillips of Sudbury, questioned whether agencies could by compulsion, indirectly, oblige people to give them the disclosure of information that they seek. We believe that Clauses 14 and 18 deal with that situation. Clause 14(1) states:
"Provision of information for verification or otherwise with consent . . . The Secretary of State may provide a person with information recorded in an individual's entry in the Register if—
(a) an application for the provision of the information to that person is made by or with the authority of that individual; or
(b) that individual otherwise consents to the provision of that information to that person".
For clarity, Clause 14 means companies can get information but only with consent. Clause 18 makes it unlawful to demand consent to a check or production of a card except in the circumstances set out in that clause. I think that deals with the noble Lord's second question, whether indirectly you could somehow oblige people to make the disclosures.
The point made by the noble Earl, Lord Onslow, is covered by the comments I have already made to the noble Baroness, Lady Anelay, and the noble Lord, Lord Phillips of Sudbury. The noble Earl, Lord Erroll, raised the issue of whether we should use the PNC. We have already had an extensive debate on that, and I hope I have adequately explained why we thought the PNC number should not be included, and why that was a proper response to the concerns that were raised in the other place and by several noble Lords in this place. We have come to a happy accommodation in relation to those concerns, and with a degree of clarity.
On the issue raised by the noble Earl, Lord Northesk, no one will have access to the register except those employees in the agency with authority to do so. The organisations mentioned may, with the individual's consent, seek confirmation of the individual's identity, together with provision of a limited amount of information that it is not on the face of the card, such as address.
Lastly, I come to the question raised by the noble Lord, Lord Stoddart. I must say that if he and I continue agreeing with each other, people will start to talk. Identity cards are only an intergovernmental issue; the EU has no competence on the matter. I know the pleasure that that answer will give the noble Lord, Lord Stoddart.
I thank the noble Baroness for indicating that she is probing. However, I had hoped that we had cleared up a number of opaque issues, and I am going to do all that I can to ensure—notwithstanding the fact that the noble Baroness said that she would raise some of these matters at a later stage—that this matter will not be brought up again. I was hoping to close this part of the debate down—but I cannot do that, and I shall allow further debate.
I thank the Minister for giving way. She said that my fears were unfounded by pointing to Clause 18, which provides a prohibition on requirements to produce identity cards. But I believe that she would agree that the state of affairs that she described is true while the scheme remains voluntary—and we on these Benches want just that. But the moment the scheme becomes compulsory or there is a designation of passports, requiring an ID card to be issued—that is, when designation is followed—the Minister's argument falls. Clause 18 is subject to subsection (2), and subsection (2)(c) says,
"where the individual is of a description of individuals who are subject to compulsory registration".
So the moment the scheme becomes compulsory, everyone will be subject to the threat that I described.
I am going to sit firmly in my seat until everyone has finished.
I am most grateful to the Minister. One thing that concerns me when she refers to validation and verification—because everything in a sense comes back to Clause 1—is whether government officials themselves or others whom they employ will be permitted to send investigators to people's homes to seek to verify information in the register. Will there be a right of entry to those homes, with or without some court control?
I thank the Minister for dealing with my point about the European Union and any powers that it might have. I appreciate that at present it is an intergovernmental matter; but she will be aware that the European constitution has been signed by all member states. Indeed, it is still a live issue, although there is a period for reflection on the matter, following the rejection of the constitution by France and the Netherlands. Does she agree that under the constitution intergovernmentalism will be no more, because the constitution will collapse the intergovernmental position into one single entity? Therefore, does she agree that if this country was foolish enough to vote for the constitution, it would no longer be an intergovernmental operation and the European Union would have some override over our identity cards and the national register?
The short answer to the question asked by the noble and learned Lord, Lord Lyell, is no. The answer to the question asked by the noble Lord, Lord Phillips, is that I still say that we are covered by Clause 18, because designation does not prevent Clause 18 applying. Compulsory registration is defined as an order under Clause 6. "Subject to compulsory registration" is defined in Clause 43(1) as meaning,
"required by virtue of section 6 to be entered in the Register", not as the result of designation. So Clause 18 protection will still apply. I can see why the noble Lord believes that it does not, but it does.
We say that even when the scheme becomes compulsory, it will still mean that an individual would have to consent to that information being given to any other agency, such as a company. That still continues.
We say that Clause 18 protection will still apply. Perhaps it would be helpful if I wrote to the noble Lord saying why we contend that the protection is still there, and copied that letter to noble Lords who have participated in the debate. Otherwise, this discussion may take some little time.
I beg the noble Lord's pardon. I did not reply to him—but I understand the point that he makes about the European constitution. The noble Lord knows better than anyone else in this Chamber that although it was signed it could not be ratified and would not come into force until all 25 signatory countries were content for it so to do. The fact that two signatory countries did not get it ratified means that it is not currently capable of being implemented by anyone at all. There is a longer debate to be had on the consequences of the collapsing of the two pillars and the extent to which that would have influenced our ability to keep control of these issues. Noble Lords will know from our endless other debates that that itself is a contentious issue, which I am sure that we could debate for at least another 10 hours.
In moving Amendment No. 46, I shall also speak to Amendment No. 47.
We are back to an issue which is still not clear to me—and that is who the Government actually intend should be included on the register. Can anyone in the world be on it? Is it intended to build up a record of the 25 million visits to this country each year? That might, I confess, have some remote security purpose, but there must be a major risk of information overload. When we go to a country such as Italy and are made under that old 1930s law to hand over our passports in a hotel for our names to be logged officially, I sometimes wonder where that information actually goes. I do wonder where, when we faithfully fill in our landing cards when we fly to another country—including this one—those cards actually go. There must be landfill sites across the world in which millions of these documents are filed, mostly irrecoverably.
In the brave new world of biometrics and electronics into which the Government intend to take us, is it the intention that all that information will be registered, and may be registered ultimately on everyone? The alternative is that, as we discussed on Clause 1, this is just a national register and that, as the Government, I believe, faintly absurdly, claim, the cost of hundreds of schools and hospitals is being poured out all for the convenience of British citizens who want to open a building society account. In that case, should not entries in the register be confined to United Kingdom citizens, as this amendment suggests? In particular, when the Minister replies, I should be grateful if she could indicate why, precisely, the register, at least so far as the statutory purpose in Clause 1(3)(a) is concerned—the so-called convenient mutual identification—should not be confined to United Kingdom citizens only. There seems to be no reason whatever why UK citizens should finance a service of convenient identification for people from overseas.
The amendment would, I accept, also exclude foreigners residing here or who have resided here in the past. But how are these people going to be found? The tragedy is that we cannot even find the illegal immigrants on the loose in Britain. How will we possibly catch up with those who are touring the country on an extended visit; or journalists from the Washington Post here on station, or over to follow the six months running up to an election campaign; or academics spending a term as a visiting professor at a university?
Will the regulations state that when someone has been here for 14 or 28 days—or 90—they must come forward and register? How will it work for foreigners who cannot be dragooned by compulsory volunteering, as our citizens will be if they want the freedom to travel abroad or to drive? They will have their own passports and driving licences, and they cannot be compulsorily volunteered.
I am just mystified about how this whole clause will operate. If someone is not a UK citizen but was a student at Essex University in the 1960s, say, can he just turn up at an interrogation centre and say, "Look, I was resident here 40 years ago. I would like to be on your register so that I can conveniently prove who I am". If he arrives here not having done so, will he be turned away? How will the Government know he was once here? Exactly what is the target group for registration: United Kingdom citizens or others? The Government must decide, as each would lead to very different conclusions as to how the scheme should be set up. Is it not essential that, before agreeing to go on to Report, we see all—and I mean all—the draft regulations about this clause? When will those be laid before us?
The object of Amendment No. 47 is to raise directly the issue of whether the ID card system is intended to be used in the war against terrorism, or is effective against terrorism, when the Government's current plans put greater demands on UK citizens than on those who may come from states that harbour or foment terrorism.
Clause 2 sets out who may be entered on the register and the Secretary of State's duty to make arrangements to enable these entries to be made. Subsection (1) sets out which individuals must have an entry in the national register. I have therefore amended that subsection to make it clear that entries must be made in respect of all those individuals who are citizens of other countries where there is evidence of proscribed terrorist organisations; evidence of other terrorist activity; support for such activity; or support for a proscribed terrorist organisation that the Secretary of State has decided is a threat to the UK.
The entry would be required to be made if that person arrived in the UK, or was already here, and sought to remain, not having entitlement to stay here. I beg to move.
My noble friend has made an important point. The purpose of this Bill, although it is not well stated, is to ensure that we do not have a number of people who are not British able to come here and wander about and pretend to be British. If we were to make the provisions of Clause 2 more specific, that purpose could be achieved. I think it is much too vague in Clause 2(1) merely to refer to,:
"every individual who—
"(a) is entitled to be entered in it; and
"(b) applies to be entered in it".
That could cover a very wide field of people. In the interests of the people of the United Kingdom, and of those who genuinely have a reason to be here, and are acceptable here, we must make the provisions of Clause 2 much more specific. As a start, "individual" in the first line of subsection (1) should be replaced with "UK citizen".
I am not going to comment on Amendment No. 47—although I must say I was impressed with what my noble friend had to say—because it covers a very wide field and needs to be carefully considered. It would be interesting to know what the Government have to say about it. Amendment No. 46, however, seems to me to be vital.
These two amendments together are really helpful in probing this Bill. Against that background, I shall try to take a thoroughly constructive approach to the Government's objectives in the Bill in order to seek to test whether those objectives are likely to be achieved.
The primary purposes of the Bill—national security, the detection and prevention of serious crime, immigration controls, unlawful working and so on—are perfectly proper objectives. The objective is to have a widespread and complete register of all the residents of this country—and, in a sense, of everyone in this country. Whether one likes it or not, I can see that there is a case to be made for having a detailed register of everyone who is in the country, whether as a citizen or a visitor; for maintaining their biometric details; and for tracking where they are going, as it is intended to do, through the identity card they will receive and have to produce every time they leave the country or make an application for some designated document.
To take a simple example, if a citizen of this country applies comparatively early because they want a passport and then you find they are going regularly to Pakistan, you might begin to take rather more interest in them than you might in people who do not seem to go regularly anywhere interesting at all.
I can see how that would be of some value in relation to the 80 per cent of the population who, whether you call it voluntary or compulsory, are likely to want driving licences and passports, and within a year or two are pretty likely to apply for an identity card. Then, however, as Amendment No. 47 sensibly points out, you are still left with an enormous gap, of which the first ingredient is the 20 per cent of the population who are not likely to apply voluntarily for a card. As my noble friend Lady Seccombe has said, a huge number of people come and go from this country, and from all the free societies of western Europe and elsewhere in the world, with very little record.
I went to the United States in April. One now needs a visa—or a visa waiver, as they nicely call it—and one provides one's biometric details. It is all done quite quickly. The noble Baroness gave us the figures: that system produces biometric details and identity for some millions of people. However, we are not going to do that, so we have a gap of about 20 per cent of our own population—which, if one just takes the adults, is probably 10 million people—and also of all the other people who come and go. It seems to me that this will undercut for years, until the scheme is modified, a great deal of the utility of this very expensive scheme.
If we are to have the scheme, let it work; that is one approach. But if we are to have it with enormous gaps, is it right to spend so much money? I come back to what will be regarded as a less constructive approach to the Bill. None the less, I think that these are reasonable questions.
I hope that I will be able to assist the noble Baroness. We need to make it clear that the scheme is aimed at UK residents. I know that the noble Lord, Lord Renton, talked about British citizens, but noble Lords will know that there are a large number of UK residents who are not, in fact, British.
I fundamentally disagree with the noble Lord's view. The scheme is aimed at UK residents irrespective of their nationality. We should not exclude foreign nationals who may have lived here lawfully for many years. They may have businesses or employment. They will have paid taxes and be entitled to public services, and many make huge and valuable contributions to the well-being and richness of this country. By richness I do not mean simply financial richness, but also the cultural depth, breadth and excitement that we now have in our country. It is the envy of many other countries and has given us great stability.
The identity card overview published in June this year, which is available in the Library, outlines the level of take-up required to gain maximum benefit from the scheme. In its early years, the main areas of benefit are more efficient administration in both the private and public sector and immigration control. I say that in response to the noble and learned Lord, Lord Lyell of Markyate. These two benefit areas build gradually in proportion to the take-up. Fraud reduction and crime benefits would increase considerably when a high proportion of the resident population is enrolled. Once the move to compulsion came, and organisations were empowered to use the ID card or NIR as the only means of identification, fraudsters and criminals would find it increasingly difficult to commit crime where identity was an issue.
If the noble Baroness were to proceed with her amendment—and I know that she raises it so that we can discuss these issues—it would severely impact on the effectiveness of the scheme. The benefits that would be achieved in relation to immigration, illegal working and access to public services under the ID card scheme would, quite frankly, be lost. We cannot see why, if I may respectfully say so, we would want to introduce an ID card scheme and then limit ourselves to being able to register only a number of the resident population.
Before I leave Amendment No. 46, it may be appropriate to seek to correct an answer that I gave to the noble Earl, Lord Onslow, who I see in his place. On the first day in Committee,
The intention is that ID cards for foreign nationals will be based on designating residence permits for non-EU foreign nationals and for EU nationals on registration certificates. These would confirm the holder's own nationality and, in the case of a non-EU national, the terms and conditions on their stay in the United Kingdom. However, because these documents would not show British nationality they would not be valid for travel in Europe. That is the distinction; British nationality is a travel document—it is on the face—while foreign nationality will be there but will not be capable of being used as a travel document. I thought it right to correct any misunderstanding now, just in case; maybe I was clearer than I think I was.
Amendment No. 47 would require an entry to be made on the register for those who enter the United Kingdom, legally or otherwise, from countries which could be deemed to be some sort of terrorist risk as defined in the amendment. I want to make it absolutely clear that the ID card scheme is not a border control project. It is an identity verification system which will allow those legitimately here to prove their identity, which will then confirm their leave to remain.
It has been suggested that we are leaving the ID card scheme open to abuse by allowing people to come here for up to three months without the formality of registering and being issued with an ID card. That seemed to be implicit in some of the comments being made. I fail to see it as any kind of loophole. If people are determined to try to stay here illegally, I am afraid that they are likely to do so whether we admit them for one, three or six months as short-term visitors.
The point is that everyone coming to the United Kingdom for a short visit will have the passport or identity document on which they entered the country as proof of identity. While they are here, they would be expected to use that document to prove their identity. Once the ID card scheme is in place it will be much easier for employers to know that they are employing people entitled to work—and for public services to know that the people they are dealing with are entitled to access their particular service.
The ID card will be the key and those short-term visitors with no card will simply not have that key. That will prove a major deterrent to anyone contemplating working or staying here illegally. Foreign nationals here for less than three months will not have an ID card, and so will be unable to pretend that they are permanently resident here and access services to which they are not entitled. We think that is a sensible and practical accommodation of those issues. I hope that has been of some little assistance to the noble Baroness, and that she will not only better understand why we have taken this course but also feel more content with it.
I am grateful for the support of the noble Lord, Lord Renton, and the noble and learned Lord, Lord Lyell of Markyate. I thank the Minister for her comprehensive reply. I feel that there is an enormous amount of information to digest and will therefore study Hansard in great detail. But for now, I beg leave to withdraw the amendment.
Amendment No. 48 is in my name and that of the noble Baroness, Lady Anelay of St. Johns. I shall speak also to Amendment No. 60.
Amendment No. 48 raises to 18 the age at which a person must be on the national identity register and have an identity card, from the current age of 16 which appears in Clause 2. The accepted definition of a child in this country is someone under 18—not 16. That is the age at which we are entitled to vote, and to drink alcohol for 24 hours in a pub. That is the age at which you come into the adult criminal justice system, the age up to which your interests are represented by the Children's Commissioner, and the age accepted by the UN Convention on the Rights of the Child. I therefore see no justification for making anyone younger have a card.
When a child is forced to submit to the collection of personal data and does not consent to the sharing of that data, it is a breach of Article 16 of the UNCRC, which provides children with the rights to a private and family life. Any interference with that would have to be justified in the public interest, and Article 8(2) of the convention covers that. It allows the public authorities to interfere with an individual's right to a private life only in six circumstances: the interests of national security; public security; the economic well-being of the country; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others. Neither in her reply on Second Reading nor in her belated subsequent letter did the Minister say which of those was the excuse for surveillance of children.
How can any of those circumstances apply to a 16 year-old who is probably not even economically active yet? Where is the evidence that we are overrun by 16 year-old terrorists or benefit frauds? I am not convinced that a child will know what information is held about him, whether it is correct, or with whom it is being shared and for what purpose. Simply sharing such information without the child's knowledge is an infringement of the convention, but the Government are quite used to that. Of course, as many of my noble friends have said in debate, it is not so much the card that the people of this country need to worry about; it is the database behind it. In this country there are already three databases relating to children. Section 12 of the Children Act 2004 provides for an information-sharing database. There is the Connexions customer database of 13 year-olds to 19 year-olds and the national register of unaccompanied children. All those contain a great deal of sensitive information about children.
"quite separate from any other database relating to children".
But the NIR will presumably give the child a unique identifying number. I cannot believe that it will not also be used at the head of any entry about that child in any other database, making cross-referencing very easy. In addition, I cannot see how the NIR can possibly comply with the requirement of the Data Protection Act 1998 to have only the absolutely necessary information for the minimum length of time. The Minister said in her letter that Clause 41(5) enables us to make arrangements so that some of the obligations under the Act could be placed on parents and guardians rather than children. Will it therefore be the parents who are supposed to let the register know when the child moves home from school in the holidays if he is a boarder, or when a student changes his digs? It seems unnecessarily onerous in relation to a child.
If people are to use an ID card to access public services, the Bill may discriminate against all children, who tend to use public services more than adults. In particular, it may discriminate against asylum-seeking children. Unaccompanied children are usually given limited leave to remain until they are 18. That means that they are not qualified to get an ID card from the age of 16, as they are neither British nor have the right to live here permanently. What will happen to them? How will they get access to those restricted public services? That situation breaks Article 24 of the UNCRC on the right to access healthcare services, and it would also affect children who had been abandoned by their families in the same way.
What about the cost of those cards for children? For families with 16 year-olds and 17 year-olds, the cost could be quite punitive. In particular, the penalties for non-compliance would be punitive. I have had 16 and 17 year-old children, and they cannot remember their heads unless they are screwed on; they will certainly not remember to carry their ID cards. In Holland, where they already have ID cards, 4,000 14 year-olds have been fined €50 for not carrying one. That would happen here. Governments are never satisfied; the cards will become compulsory soon, no matter what the Government say. Indeed, they are no earthly use unless they are compulsory.
Amendment No. 60 removes the power of the Secretary of State to change the age at which children must have an identity card and be registered on the NIR. We already believe that the age of 16, which is in the Bill, is too young. If the Government wish to lower the age to include children younger than that, they should come back to the House with primary legislation to achieve that, not just affirmative resolution, and explain properly the reasons why they need to do that. Those reasons must comply with one or more of the six reasons that the convention allows, which I listed a few minutes ago.
I feel somewhat at a loss to know what the Government's real reasons are for including children in the legislation. I raised all these issues at Second Reading, and the Minister in her summing-up did not have time to answer any of my questions. She promised to write to me; she did so three days after the start of the Committee, despite three phone calls from my office explaining that I sought her response before the deadline for tabling amendments to the early parts of the Bill. Although her letter made a number of claims about the impact of the Bill on children, she has still not explained why they need to be covered at all by the legislation. She has not yet made that intellectual argument. I hope that she will do so today. I beg to move.
My name appears on the amendment, and I was delighted when the noble Baroness, Lady Walmsley, agreed to move the amendment and even more delighted when I heard her robust argument. In another place my honourable friends took the lead on these matters; I decided that it was more appropriate for the noble Baroness to do so because of her expertise on them. Children's needs come well before any matter of party pride.
These are probing amendments. I wish to go to all those organisations that have the interests of children at heart between now and Report to ask their views on the Minister's response. I know that she will try to help us on these issues, given her past responses. I am grateful to Alison Linsey of the National Children's Bureau for sending me the child impact statement of the All-Party Parliamentary Group on Children. I would be grateful if the Minister could address some of the following points made in the report. First, there is no explicit rationale for including under-18s in the proposal. The accepted definition of a child in the UK is up to 18 years, with some exceptions for particularly vulnerable groups such as care-leavers or children with learning difficulties. Secondly, there is a lack of clarity about the purpose of the national identity register. Powers in the Bill allow for the possibility that the database could be used for purposes as yet undisclosed and for groups of young people as yet undefined. The information-sharing indexes to be established by the Children Act 2004 need to be taken into account. Will the Minister explain the relationship between the proposed national identity register, the information-sharing indexes to be established under the Children Act 2004, and—as the noble Baroness, Lady Walmsley, alluded to—other databases such as the Connexions card? The report also points out that the powers for the Secretary of State not to correct data unless he feels it is appropriate to do so may contravene children's rights under data protection law and international conventions under Clause 2(5).
Finally, I ought to comment on my Amendment No. 63, which the noble Baroness, Lady Walmsley, has not referred to. The amendment reflects my questions on the National Children's Bureau report, because it places a firewall between the national identity register and a national register of children.
I support Amendments Nos. 48 and 64 to which my name is added, and I share the concerns so powerfully expressed by the noble Baroness, Lady Walmsley, and by my noble friend Lady Anelay of St Johns.
We live in an age when our children are old before they are young, and we should endeavour to afford them as many freedoms as we can before they get into what at times seems like the remorseless grind of being an adult. And yet through successive legislation, our children risk becoming the most registered and watched members of our society. I am particularly troubled that the Bill would extend to the Secretary of State the power to lower the current age of registration. I simply cannot understand why that would be necessary or desirable, and I look forward to the Minister's explanation of that power. The difference between the ages of 16 and 18 may be small in numbers but it is vast in the questions that it raises in this Bill, and it is absolutely right that we probe the Government on these issues.
I support this amendment. As the Minister will know, the Joint Committee on Human Rights, of which I am a member, expressed a number of concerns about this Bill and its compatibility with the Human Rights Act. In particular the committee said that,
"the Bill's provision for the retention of extensive personal information relating to all or large sections of the population may be insufficiently targeted to be justified as proportionate to the statutory aims and may lead to disproportionate interference with Article 8 rights", which as the Minister will know is the right to privacy. That sentiment applies to all of us, but in particular to children, as the noble Baroness, Lady Walmsley, made clear. I have little to add to the admirable advocacy of the noble Baronesses, Lady Walmsley, Lady Anelay and Lady Morris, except perhaps to say that I have read with great care the Committee proceedings in the other place on the question of why the Government had fixed the age at 16. After reading it I was far from being any wiser than before I had read it. I am glad to support this amendment.
I should hate for this amendment to be proposed with no masculine affirmation of its merit or indeed for my noble friend not to have the support of her colleagues. It seems to me to be an unarguable case but no doubt the Minister, with her usual powers of advocacy, will prove that to be wrong. We await with fascination.
I support these amendments as well. Having been actively involved with the scrutiny of the database provisions of the Children Act 2004, I know that those databases will include all the details currently envisaged by paragraphs 1 and 3 of the schedule, and possibly even the majority of its paragraph 4, as being the registrable facts that individuals may be required to enter in the register. Therefore, to all intents and purposes, the only information envisaged by the ID register scheme that it will not hold will be the biometric identifiers. With this in mind, it seems both unnecessary and wasteful to duplicate this data within the register for any individuals between 16 and 18, if only because the two databases taken together afford the Government cradle-to-grave data sets of every individual in the land.
I hope that I will be able to assist the House. I know that the four noble Baronesses who spoke to the amendment have an acute concern in relation to young people and are rightly anxious about the provisions, to make sure that they do not inure to the disadvantage of those below the age of 18. I hope I will be able to assure them on that point. For the purposes of clarity I turn to a point about which the noble Baroness, Lady Walmsley, spoke on a number of occasions—the need to carry an identity card. I hope that she will accept that nothing in this Bill makes that necessary; it has expressly been excluded.
Amendment No. 48 raises the age of entitlement to registration from 16 to 18. The noble Baroness, Lady Walmsley, asks for a rationale as to why we chose 16 as opposed to 18. The age of 16 is set out in the Bill for good reason. It is the age at which the adult 10-year British passport is issued and is also the school leaving age. Under proposals announced by the Government all new passport applicants aged 16 and over will have to attend a personal interview starting in 2006. Unlike younger applicants, a 16 year-old can apply for his own passport without requiring a parent or guardian to do so on his behalf. The noble Baronesses, Lady Walmsley, Lady Morris, Lady Anelay and Lady Stern, will know only too well from the work that they do with young people how fractious the relationship between parents and children aged 16 and 18 can be—how children often want their own autonomy. They want to be able to travel, can legitimately leave home, and do not like the concept of asking a parent to countersign on their behalf. This is an interesting and difficult time for many young people.
The Government believe that 16 is the appropriate age at which to issue identity cards as it ties in with the issue of the national insurance number. Combating illegal working is one of the main aims of the identity card scheme. The scheme will make it easy for employers to check entitlement to work as well as the age of potential employees. At 16 young people are more likely to become economically active, needing to open bank and building society accounts if they do not already have them. An ID card would make it easier for them to do so.
Amendments Nos. 48 and 66 would make an order amending the age of entitlement subject to the "super-affirmative" rather than affirmative resolution procedure. This would require an amendable report to be laid before and approved by Parliament before the laying of the draft order. The identity card scheme is being designated as a scheme for those aged 16-plus. That is not to say that in future there might not be a good reason to vary this age. Whether this is to extend the scheme to capture those approaching their 16th birthday and so registering them in time for when they turn 16, or allowing—as is currently the case with passports—registration from birth, the flexibility to modify the age may be required. In some other countries ID card schemes allow separate ages for registration and the issue of ID cards. In Hong Kong, for example, registration is compulsory at birth but an ID card is not issued until the individual has reached the age of 15.
I hope your Lordships will agree that the age of 16 that we have set in this Bill is right and that we should retain the power to vary this age in future. I add a further issue—one can get married with one's parents' consent at the age of 16. If one was married at that age and able to have one's own household it would be unusual if one was not entitled also to possess one's own identity card without asking one's parents' permission.
There will be lots of practical questions to deal with if any decision to reduce the age of registration below 16 is made, but I reassure noble Lords that that is not our current intention and that we are in many ways looking at a framework Bill which will not become compulsory for some time to come. Therefore, we hope amendment will not be needed for some time to come.
We also argue that the current affirmative resolution process provides adequate parliamentary scrutiny for any order to modify the age of registration. We have listened to concerns and changed the original negative resolution process to provide that additional scrutiny. It is noteworthy that the Delegated Powers and Regulatory Reform Committee did not comment adversely on either the nature of the power or the level of parliamentary scrutiny. There would be significant public debate on the issue of age modification. It is not something that would be brought in surreptitiously.
Amendment No. 61 would allow the Secretary of State to raise the current age of registration from 16 but not to reduce it. As I have already indicated, we have no immediate plans to reduce the age below 16 as the cost of doing so outweighs any benefits that may arise. This is due to the fact that children have unstable biometrics which would result in them frequently having to re-register. However, we may wish in the future to register "rising 16s" to tie in more closely with the NINo allocation, and to do so would require the use of the order-making powers to modify the age. Any orders laid under this clause are subject to the affirmative resolution procedure, and therefore Parliament would be able to agree to any modification of the age of registration. When orders cover an issue on which it is clear that the House is able to say "yea" or "nay", that obviously gives greater potency to the affirmative process.
Amendment No. 62 would prevent the Secretary of State reducing the age of registration if a national register of children had begun or had been established. Amendment No. 63 in the name of the noble Baroness, Lady Anelay, would prevent the Secretary of State transferring any information from the children's register to the national identity register without the written permission of the parent or guardian of the child. I have already made it clear that we have no plans to reduce the age of registration. Therefore, in my view, the proper time for discussions relating to the children's register will be if and when the Secretary of State lays an order to reduce the age of registration.
As any order of this sort is subject to the affirmative resolution procedure, Parliament, as I have already indicated, will have ample opportunity to debate such points. In any case, the children's register has not yet been set up, and therefore in my view it is premature to discuss the interfaces between the national identity register and databases that are not yet in existence.
However, I reassure the Committee that the children's register and the national identity register have two very different functions. I know that the noble Baroness, Lady Anelay, is very familiar with those differences. The national identity register is a database concerned with the identification of individuals, whereas the children's register will allow practitioners to share information about children in order to improve their well-being and to safeguard and promote their welfare—something that I know many noble Lords have wanted for a long time and have celebrated. Just as the national identity register will not hold details of medical or tax records, nor will it hold any information that might relate to the welfare of children.
Amendment No. 60 would completely remove the Secretary of State's ability to modify the age of registration by order. Once the Bill is enacted, the only way to amend the age of registration will be by primary legislation, but I am sure that Members of the Committee agree that that is not an appropriate use of parliamentary time. In any event, as the order-making power to modify the age is already subject to the affirmative resolution procedure, I strongly argue that there is already sufficient parliamentary oversight of this matter. No criticism of this power or the parliamentary procedure was made by the Delegated Powers and Regulatory Reform Committee.
I turn to some of the more specific questions raised by the noble Baronesses, Lady Walmsley and Lady Stern. I turn, first, to the issue of young people and unaccompanied asylum seekers with limited leave to remain. Anyone over the age of 16 with leave to remain in the United Kingdom for more than the prescribed period—as I have already indicated, that is intended to be about three months—will be entitled to registration for the period of their leave to remain. I have already made plain that the children's database under the Children Act would have no such linkages.
I turn to the human rights aspect. Both the noble Baronesses, Lady Stern and Lady Walmsley, raised the issue of the Convention on the Rights of the Child. The convention parallels the protection of the right to privacy in Article 8 of the European Convention on Human Rights. If the relevant articles of those conventions are engaged and interfered with, the noble Baronesses are right to say that any such interference will need to be justified on proper grounds. An interference with Article 8 will need to be justified in accordance with Article 8.2—that is, it must be,
"in accordance with the law . . . necessary [and proportionate] . . . in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
The same applies to the specific rights of children to privacy under the Convention on the Rights of the Child. Clause 1 sets out the statutory purposes of the identity register, which are to provide the individual with a convenient method of establishing identity and to provide a secure and reliable method for individual identities to be ascertained or verified where it is in the public interest to do so. All those issues apply equally in relation to children.
We think that the measure is an appropriate and proportionate response. We have to recognise that there is a difference between children of tender years and young people—the latter deeply resent being seen as children in the pure sense of the word—who have not yet reached their majority. Those who are between the ages of 16 and 18 have a greater degree of autonomy, which they cherish and would not wish us to impinge upon improperly. Many young people would find an identity card extremely useful—so useful that many of them already download different forms from various Internet sites and use them. So we think that this is an appropriate and proportionate response. I hope that I have given a better explanation of why 16 is the appropriate age and that I have satisfied the expectation of the noble Lord, Lord Phillips, with regard to my ability to deal with this issue.
Will the noble Baroness allow me to make a short intervention, which may come better from the Cross Benches than from any other side of the Chamber? Is it not true that the very powerful assurance that she gave about the change of age and the fact that there would be extensive consultation and debate apply only while her party is in government, or can assurances be given in respect of other parties as well? If not, it seems to me that we want rather more assurance than that—not, of course, that I would suggest that it is not probable.
Of course I cannot bind my successors in title. It is for the noble Baroness opposite and the noble Lords sitting on the Liberal Democrat Benches to say whether they adhere to the view that the Government have taken an appropriate stance. If the day ever came in the long distant future when this Government were no longer able to keep the safety and security of this country properly in their hands, then they would similarly make those undertakings. I cannot speak for the other Benches, but I can say that the structure that we have put in place through the Bill—the order-making power, the limits that have been put on it and the fact that we have the affirmative resolution—would and should constrain any government to act within that framework and give us all an opportunity to have a say, whichever Bench we happen to be sitting on.
At present, this is not a compulsory process. Once it becomes compulsory, all those who fall within the framework for compulsion will have to comply equally.
But does that not undermine—I shall not say "give the lie" as that is too strong a phrase—the whole of the noble Baroness's case, although she was, indeed, her usual eloquent self? It seems to me that basically she was saying that certain young people of the ages of 16 and 17 are dying for an identity card. Well, that is fine; let them have an identity card, but we are talking about compulsion. Why on earth should there be compulsion for 16 and 17 year-olds?
I have set out the issue in relation to passports. Noble Lords will know that there have been a number of changes to passports. First, all individuals must now have a separate passport, irrespective of age. Passports will carry biometric data for adults and those entitled to an adult passport. Under our current framework, 16 year-olds are entitled to a 10-year passport, and so the process will apply to all those who are 16 years old and over. I understand entirely that the noble Lord and those who sit on the Liberal Democrat Benches object in principle to the application of identity cards; that, of course, will influence the way they respond to the issue of compulsion. We will have an opportunity in Committee to debate whether compulsion is right. We say it is; others may disagree. The appropriate age, we maintain, is from 16.
I thank the noble Baroness, Lady Scotland, for her reply, and those noble Lords who spoke in this debate. I think the answer indicates how very ambivalent we are about children in this country. I accept that people will not have to carry the ID card under this Bill; I hope I did not indicate that I thought otherwise. However, as I said, I am quite sure that they will, because governments are never satisfied. The noble Baroness, Lady Scotland, said that the age of 16 is linked to the passport. Why not link it to almost any other element of bureaucracy relating to young people, be they 16, 17, 18, 21 or any other age? It seems that bureaucracy is the moving factor, rather than the rights of the child.
The noble Baroness also said that the Government have no immediate plans to change the age. I wish I had a pound for every time I have heard governments say that. It was also suggested that it was rather premature to talk about the link between the NIR and the children's register, because the latter is not yet set up and the legislation for the former is currently going through your Lordships' House. I think it is perfectly proper; we already have the legislation for the children's register and the Government have expressed their determination to set up the NIR. Therefore, I think it is perfectly proper to address the relationship between the two.
The noble Baroness has not answered my question about the fact that there will undoubtedly be a unique identifying number attached to each person's entry on the NIR. Surely, that number will be used on any other database. Although there may even be a firewall between the two it makes it very easy to cross-reference and obtain information about children, which people are not entitled to.
I will read with interest in Hansard what the noble Baroness, Lady Scotland, has said as I consider what to do at the next stage of the Bill, and consult with the noble Baroness, Lady Anelay. I beg leave to withdraw the amendment.
In Amendment No. 49 we come to the other end of the spectrum. Perhaps I should declare a vested interest, because this amendment addresses the specific condition of people over 70. It is widely accepted that people of this age pose little or no threat to this country, whether or not they are UK citizens. It is also accepted—and sadly becoming ever more true as the Government's long-term pension policies begin to bite—that older pensioners are, on average, one of the poorest groups in our community. Why should these people, who have given a lifetime of service to our country, and who face a longer period in retirement than former generations, be subjected to the cost of registration and ID cards? What consideration have the Government given to exempting this group from this procedure?
It is clear that among older pensioners will be found a large number of those who neither drive nor travel abroad, and many who cannot do so, by reason of their infirmity or lack of means. I hope therefore that the Minister will be able to accept this amendment and lift the threat of compulsion from this age group. However, if the noble Baroness cannot agree, will she think very carefully about the implications of including them? At this age a person's facial characteristics change very fast. Can the noble Baroness give an assurance that under no circumstances will people over 70 be required to purchase a new ID card under Clause 13(1)(b) or Clause 13(1)(c), or any other provision of the Bill, as their faces change?
Will the noble Baroness give an undertaking that the card for pensioners will have the same period of life as for any other group? Specifically, in this regard, is the noble Baroness aware that driving licences, which the Government intend to be used as designated documents and could force otherwise non-compliant citizens into the register and the ID card scheme, have to be renewed more frequently by people over 70? Will a pensioner have to buy an ID card afresh, or a full biometric-compatible driving licence every time they renew their licence? Will this be every three years, every five years or when? Do the Government have any intention of reducing the term of validity of driving licences for people under 70? If so, for how long will they last? What are the implications for the ID card system and the cost to the hard-pressed pockets of our pensioners? I ask the Minister to set out all the ways in which their treatment will differ under the scheme. One assumes, for example, that an 85 year-old will not have to list where he was living the day World War 2 broke out, under Clause 1(5)(d). What will be the cut-off date for pensioners having to record their past movements? I am very concerned that pensioners may be subjected to unnecessary harassment, inconvenience and cost, as well as foolish and wholly avoidable worry under this scheme and believe that the Government should consider urgently, and make clear before Report, whether they will be exempt. I beg to move.
This amendment seems to be a bit of a curate's egg. As long as the Bill retains the voluntary system, it seems to me to be unnecessary. I can see the point made by the noble Baroness, Lady Corston, and the noble Lord, Lord Gould, that there are particular groups of people who particularly want identity cards for particular reasons. I am absolutely happy with that and do not begin to deny it. I do not see why, if some old fogey of 90—I shall withdraw "old fogey"—wants an identity card, he should not have it. If this system becomes compulsory by primary legislation, I would see the force of the noble Baroness's amendment.
As probably the oldest person in the Chamber at the present time, I believe we should think very carefully about this. I feel sure that people over 70 would feel excluded if the system was compulsory. They would say, "Why are we incapable of going out and blowing ourselves up? Some of us, even when we reach 80, can still get up in your Lordships' House to make a speech. We are equally capable of handling a gun, if necessary. Many of us are active enough to get around the country very often. Indeed, because of our age and, perhaps, 'fogeyite' appearance, we might get into places that younger people could not. We would be less suspicious figures".
I am not sure that the arguments being used are good arguments. Before long the population of this country aged over 65 will reach very high proportions. Older people are much more active and are often much richer than young people. They can get about and no one takes a blind bit of notice of them. People think, "There's an old fogey. Why do we bother about him?". Although I am absolutely opposed to the identity card system, if identity cards are made compulsory, they should be compulsory for everyone between the age of 18 and whenever the person pops off. On this occasion, I cannot support the amendment.
If the age were to be 70, it would have the effect of an awful lot of people not having to go and report when they are dead because most people live to more than 70 years old—which might be of some assistance. I could even argue the opposite to the noble Lord, Lord Stoddart. The only people who should be forced to have this wretched identity card should be aged between 59 and 60—with no one either side of that.
To be slightly more serious, there is a problem of people's irises changing very rapidly in old age. As my noble friend on the Front Bench said, biometric details change and can change frequently. That will impose a considerable and unnecessary cost, especially as the Government do not have the faintest idea of how much the scheme will cost. Rather, they think that they have, but everyone else thinks that they have got it wrong.
Having described 90 year-olds as old fogeys, the noble Lord, Lord Phillips, runs the risk of incurring the wrath of the noble Lord, Lord Renton. Were he here, I have got a feeling that the noble Lord, Lord Phillips, would not be feeling too comfortable at this moment. Perhaps we should not dwell on that for too long. The noble Baroness, Lady Seccombe, made a case, but the noble Lord, Lord Stoddart, devastatingly savaged it. I am almost inclined to think that I should not bother to go through my points because they are not half as effective as those made by the noble Lord, Lord Stoddart. I am a bit like the noble Baroness, Lady Scotland, here: I cannot recall another occasion when I so felt moved to agree with him.
I see no good reason for exempting people over 70 years old from entitlement to be entered into the register. In the Government's view, it would unfairly prevent elderly people from taking advantage of the increased security against identity fraud that ID cards will bring, as well as other benefits. It must be remembered that elderly people are increasingly economically active. They take their place at the Dispatch Box. There is a persistent trend of that sort which no doubt will continue. The over-70s age group is likely to use those services which will probably introduce the ID card scheme—the National Health Service being a good example. If elderly people are excluded from the scheme, they may worry that they would be unable to prove their entitlement to a whole range of services.
It is planned that mobile enrolment units will be used in order to facilitate the registration of elderly people and those who may have mobility problems. We will also consider concessions and discounts for those on low incomes. We feel that we can deal with the point on the adverse effect on elderly people. The Bill allows for exceptions to be made in terms of compulsion and we could, for example, choose to exempt more elderly people from compulsory registration altogether or provide elderly people with a lifelong card that would not need to be renewed.
We have already considered not requiring older citizens to register in paragraph 44 of the Explanatory Notes. It is possible to exclude people over a certain age from the registration requirement under Clauses 6(1) and 41(4), which give the power to apply compulsion to different groups and to make exceptions. We are quite happy to give a commitment that we will continue to develop those ideas because we do not want unfairly to burden elderly people. However, we do not want unfairly to penalise them by not bringing them within the scope of the system and the benefits that the system will bring. I have probably covered most of the points that the noble Baroness raised. For the reasons that I have given, I hope that she will withdraw the amendment.
I am grateful to the Minister for his reply. I accept that my amendment did not find favour with many Members of the Committee, but I was glad to hear of the possible concessions and exemptions that the Minister referred to. Sadly, they will not be in the Bill, but we can always follow that up with pressure to make sure that they occur. I beg leave to withdraw the amendment.
In moving Amendment No. 50, I shall speak also to Amendment No. 65. The amendments concern Clause 2, which is an important part of the whole framework of the national register. It sets out who can or must be registered in the register. In the framework nature of the Bill, many powers are given to the Secretary of State under, for example, Clause 2 (2), (3) and (4) to prescribe or regulate who is entitled to be registered, what description of citizen or resident is to be registered, and so on. The end of Clause 2—and, indeed, the end of Clause 3—makes clear that, except as regards modification of the age of the citizen—we have just talked about whether it will be 16 or 18 years of age—the discretions of the Secretary of State shall be exercisable by negative resolution. This is a central part of the framework of the legislation and all the discretions in this clause should be exercisable by the affirmative process. I beg to move.
I support these amendments, which provide a simple change that will ensure that all orders under Clause 2, which sets out who may be entered on the register, are subject to the affirmative resolution procedure. As the noble Lord, Lord Phillips, explained, the clause as it currently stands provides only for the Secretary of State to modify the age of entry on the register by order subject to the affirmative resolution procedure. It does not however include the regulation-giving powers in subsection (3). By amending "subsection (6)" to "this section" in line 24, subsection (7) will encompass subsection (3) and subsection (6) powers.
In Amendments Nos. 23 and 52, we have already debated the questions that we had about options that have not been included in this clause regarding exclusion from the proposed identity card scheme. Can the Minister please take this opportunity to explain to the Committee in detail the situations that she envisages falling under paragraphs (a), (b) and (c) of subsection (3)? It would be better to have the affirmative scrutiny of Parliament rather than a negative power that has the potential to be quite wide ranging.
This Bill goes so far against the grain of our historical traditions, the fact that the Government have the power to make it compulsory and the fact that compulsion will inevitably result in prosecution and conviction, any changes of something of this standard of seriousness should not just be allowed to be made by regulation which has to be prayed against.
Surely, they should be made by statutory instrument and affirmative orders. We are dealing here with new territory and the loss of old liberties. I have not been persuaded of the necessity for changes to be made in this way, and the further this Committee stage has proceeded the thinner the persuasion has become—the benefit of this or that, of which I am completely unconvinced. However, if the Government are determined to have them, they must justify every single piece of the nibbling away of our old liberties. They must justify to Parliament again and again every change that they make, which means affirmative orders as a very minimum.
I do not think that the Government would want to go along with this proposal. We all know—we have debated it in this House many times—that pushing through items by negative order antagonises people. In my view, in matters of this kind, it is absolutely dangerous. As has been pointed out, the order has to be prayed against. If it is given any time at all, there is a discussion, there can be no votes and there can be no amendments.
The affirmative order is slightly different. The Government have to ensure in their time that there is discussion, and although there can be no amendments, the affirmative order can be rejected. That is the nuclear option. Nevertheless, there can be a full-scale discussion, and if the Government have not persuaded Parliament that the items are right and proper and can be accommodated by Parliament, they can throw them out. With the negative instrument, it would be very difficult for them to do that.
As I said at the beginning, in a matter as sensitive as this, I would have thought that the Government would accede to the amendment on the basis that they want to take Parliament with them. Although the Prime Minister thinks that Labour will be in power for the next 100 years, that is by no means certain. Nevertheless, they may be in power for a long time and they should want to take Parliament with them. One of the ways in which they can do that is by acceding to amendments of this kind, which would give Parliament a greater say.
I can assure the noble Lord, Lord Stoddart, that we want to take Parliament with us. Indeed, we do not think that this provision should necessarily be a contentious one. Perhaps I can explain why I say that.
Taken together, Amendments Nos. 50 and 65 would make any subordinate legislation under Clause 2(3) subject to the affirmative resolution procedure, which would require a draft order to be laid before and approved by Parliament before the order was made. I hope I have indicated that the Government's view is that in a number of areas the affirmative procedure is correct. In particular, we did that in relation to the previous amendment that we debated. However, we are not convinced that the affirmative procedure is required for this power, which is just to exclude categories of persons from an entitlement to register.
The power is limited to the categories described in subsection (3); namely, those who have resided in the UK for less than the prescribed period. I have already indicated that we propose that the period to be prescribed should be about three months. Anyone who has been here for fewer than three months, and those who reside here unlawfully, would not be entitled to register. In relation to those two groups of people, we believe that it is appropriate for any change in relation to paragraphs (a), (b) or (c) to subsection (3) to be by negative resolution. It cannot be used for other cases.
The delegated powers in this clause were scrutinised by the Delegated Powers and Regulatory Reform Committee in its report on
I am grateful for the Minister's explanation of the Government's position. She did not mention Clause 2(2), which deals with the Secretary of State's power in relation to individuals of a prescribed description who have resided in the United Kingdom. In my view, that is quite a wide and important power. I take the Minister's point about people who are here illegally. However, when she refers to just excluding categories from registration in subsection (3), I believe that there is more than "just" to it.
I do not want to prolong the debate, but I have to say that the negative procedure has almost fallen into disrepute. I do not know when a negative resolution was ever not proceeded with. I do not think that there is an example of it in post-war history. It is literally a passport for a government to do what they like. That is why I am not happy, but I hear what the Minister has said.
In view of what I have just heard from the noble Lord, I should make it absolutely clear that the affirmative resolution procedure would apply to Clause 2. As I understand it, the noble Lord's amendments would apply not to subsection (2) but only to subsection (3).
My Amendment No. 65 would require all orders made by the Secretary of State under this section to be by affirmative order. Reading through to Clause 43, I do not see where it is stated that prescription under Clause 2(2)(b) has to be by affirmative order. I took that to be a power exercisable by negative procedure, but perhaps it is a matter to be resolved beyond this place.
I want to make it plain that I am saying that Clause 2(3) relates to negative resolution. However, if there is any remaining lack of clarity, I shall be very happy to write to the noble Lord about it.
In moving Amendment No. 53, I wish to speak also to Amendment No. 144. As I read it, Clause 2(4) means that in the so-called "voluntary" phase of the scheme an individual could find his registrable facts being entered on to the register without his consent and against his will. This prompts me to ask the question, why? Perhaps I am being unnecessarily obtuse but I struggle to understand what purpose is served if an individual's details are to be entered whether or not he has applied to be, or is entitled to be, entered on the register. At the very least one would expect an individual to have a right to know when information about him is being, as it were, manipulated, in this way—the more so because of the gravity of the civil penalties on the face of the Bill. Indeed, if the individual is unaware that his data is being, or has been, entered, what chance does he have of complying with the various requirements to update his information? I should be grateful, therefore, if the Minister could give us specific examples of the circumstances in which it is envisaged that such entries to the register will be made.
Having thought about it, it occurred to me that one possible reason for the provision might be to facilitate the merging of data on to the register from already existing government databases. In so far as that may be correct, I am bound to state my firm opposition to such a prospect. Contrary to the protestations of the Government to date it suggests that it is envisaged, if not anticipated, that considerable "linkage" will exist between the national identity register and the host of other databases throughout government. Evidently this would be wholly antipathetic to individual privacy rights. Quite apart from that it also undermines the Government's insistence that a principal reason for the register is to establish a wholly clean information database from scratch and therefore untainted by any of the inaccuracies or anomalies that are prevalent in existing systems.
As to Amendment No. 144, as I read it Clause 8(5) enables ID cards to be issued in prescribed cases to individuals who do not qualify for them. Again, I may be being unnecessarily obtuse but I fail to understand the necessity of foisting a card upon someone even though he is not required to be issued with one. Viewed logically, no individual is likely to want to sign up to the onus of regularly updating their details and the rigours of the civil penalty regime unless the obligation so to do is compulsory. So here, too, I would welcome specific examples of the circumstances in which it is envisaged that that will happen. I beg to move.
My name is added to Amendment No. 53. The noble Earl, Lord Northesk, made all the points that I would have made. However, I focus on the point that it seems bizarre that the Secretary of State can force on to the register an entry on the part of someone who has the right to apply to be on it, but has not applied, and is entitled to be on the register but has not applied. That seems perverse. As the noble Earl said, we await clarification.
It is a pity that Amendment No. 53 is not grouped with Amendment No. 55 as they are closely connected. As my noble friend Lord Northesk said, if a person is to have an entry made, he at least should be entitled to the information that that entry is being made, which is the matter we shall debate on Amendment No. 55. Presumably the Minister will say that the entry will be made because under the statutory purposes it is necessary in the public interest to tackle national security, the prevention of crime, illegal working and so on. I imagine that we shall be given that justification for the measure. I understand that. I also understand that for those purposes entries may be made in the register. But surely if such entries are made, the individuals concerned should at least have the right to know that they are being made, which is why it is such a pity that we are not discussing this amendment with Amendment No. 55.
I shall not be tempted to respond to my noble friend's remarks on Amendment No. 55 just as the dinner break is about to commence as to do so might take some time. However, I fully support everything that my noble friend Lord Northesk said. It is important that we do not allow compulsory registration through the back door, which apparently could happen under the Bill as it is currently drafted. I inform the Committee that in an attempt to speed up discussion I shall group Amendments Nos. 67 and 68.
I hope that I shall be able to assist the Committee. Clause 2(4) is intended to provide the flexibility needed to allow details already available to be recorded of a person where it would be useful to have those details on the register—the noble Lord, Lord Crickhowell, foreshadowed some of these reasons—despite the fact that they are currently not entitled to be registered. We believe that flexibility is necessary in that regard. An entry can be made only where it is consistent with the statutory purposes and can contain only registrable facts. Amendment No. 53 would remove that flexibility but we believe that there are good reasons to keep it.
One example of how this could be used is to record failed applicants or those who are about to be removed. This would ensure that any further attempts to register would be flagged. Another example of how this could be used would be where a person applies for, and is issued with, a biometric visa in anticipation of coming to the United Kingdom. In this case it might be useful to have this information recorded in the register so that if they did exercise their right to stay longer than three months, the process of getting a residence permit/ID card would be made easier.
There are also cases where it would be useful for national security reasons to have information recorded on the register about an individual who would not be entitled to register or who had not yet applied for a card.
Amendment No. 144 would prevent, by removing Clause 8(5), the issue of cards to anyone who was not required to have one, but whose registrable facts were on the register. Some may consider that this is an undesirable proposition. However, there are circumstances which can be envisaged where this power is necessary—for example, a foreign national who has been resident in the United Kingdom for less than three months and is therefore not entitled or, indeed, required to register. While it is not common, it is not impossible that a foreign national in this position could commit a criminal offence and have his passport withdrawn as part of his bail conditions. Without his passport he may have no way to prove his identity, but his registrable facts can be recorded under Clause 2(4), and an ID card issued under the provision which we are discussing here.
A more common example could be a young person who has not quite attained the age of 16 but is applying for a passport. If he were a few months older, he could also apply for an ID card. It appears logical to us that in these instances both should be issued at the same time.
It makes sense that where a person is entered on the register at their own request under Clause 2(4), despite not being entitled to be registered, the Secretary of State has power to issue him with a card in appropriate circumstances. That might be appropriate where, for example, someone visits the United Kingdom very regularly without actually being resident here or returns from abroad to take up residence again. We envisage that those circumstances could easily arise. I hope that I have given examples to demonstrate why we need flexibility and why it should be provided. I hope that the noble Earl, Lord Northesk, will feel able to withdraw the amendment.
I anticipated that some quite good reasons might be advanced, and I understand the reasons why they have been. They are of a specific type, and on closer examination, they may be utterly reasonable. My concern is that it is possible for the clause to go much wider. For example, it would be possible to put many of the entries on the record in the police or some other criminal register in a way that has not been envisaged or would be desirable.
My noble friend's amendment is so useful because it raises the question of whether there is a limitation on the amount of material that might be considered in the national interest, which is widely defined, and which the Secretary of State could suddenly decide should go in the register. There would be large quantities of information in the register, which, from the noble Baroness's speech, is not the intention, but it is within the scope of the Bill. Uncertainty remains and we must consider the issue carefully.
I understood most of what the noble Baroness said, and can see the force of it. However, Clause 2(4) states:
"An entry for an individual may be made in the Register", when the individual is not entitled to be entered in the register. That is a total contradiction. If you are not entitled to be in the register, how can you make an entry in it?
I tried to give an example of when someone could not claim entitlement under the provisions but it would make good sense to allow him to do so to meet the needs. For example, someone who is 15 years and 364 days old may apply for a new passport, but because he is not yet 16 he is not entitled to have an ID card. It would be appropriate to enable him to have both.
Subsection (4) enables us to have the flexibility to deal with the sort of situation that I have described. I agree with the noble Lord, Lord Crickhowell, and I am grateful to him for seeing the utility and sense of having that flexibility. But the information that we provide would only be available to the Secretary of State. It does not enable information to be obtained from other sources.
I gave examples, too, of those who we may not want to be included. It is important for information to be held to disable them from taking advantage of an opportunity to obtain something that we would not wish them to have.
Perhaps I can explore the example given by the noble Baroness about the person aged 15 and three-quarters or whatever. That implies that the clause gives the Secretary of State the power to override the age limit. Although the limit is 16, the Secretary of State can say, "Well, he is nearly 16 so I am going to exercise discretion to overrule that provision". Is that what the clause implies?
No. If your Lordships consider the practicality of when those data are given, the information could be held to use later to make it convenient for the individual. The Bill is trying to do what is convenient, easy and proportionate.
We have real issues with this. The amendment proposed by the noble Earl, Lord Northesk, would remove all flexibility from the provision, and we could not do any of the things that I am sure your Lordships agree are sensible and proportionate. That is why we want to retain Clause 2(4).
To clarify the issue of data from other sources to the register, I hope that the noble Lord, Lord Crickhowell, and the noble Earl, Lord Northesk, understand that information added to the register will generally be provided by the applicant under Clause 5. He can be asked to provide fingerprints and other biometric information. Entry in the register may also be made under Clause 2(4) in relation to someone who has not applied if information is otherwise available to be recorded. An example of that is when the Secretary of State already holds fingerprints as a result of a biometric visa application, as I described, or an application for asylum. The Secretary of State may be able to use the fingerprints already available to add the individual's entry in the register instead of requiring him to provide another set. We want to be able to do those practical things.
Having heard the noble Baroness, I certainly do not want to strike out the clause because there are good bits in it. Perhaps we can contemplate the issue a little further. What she said about fingerprints might allow the Secretary of State to say to the police, "If you have young tearaways who you've charged with public order offences or ASBOs, let me have their fingerprints and other information". The Secretary of State could use this clause for a series of entries that would then be accessible to other government departments and public authorities.
Another question has been bubbling up in the back of my mind. The noble Baroness is saying that people who have been turned down for asylum or this, that and the other, can be put on the national identity register. Are those not policing matters, and should they be on police registers rather than on something that is supposed to be an enabling document, or have I misunderstood?
The police records already have a national database in relation to the PNC. All that information is properly collated there.
In relation to penalties, the information can often come from a civil sphere in terms of asylum seekers, for example. They have committed no criminal offence or transgressed our criminal law, but have applied for asylum. Perhaps it turns out that they were not so entitled and should have been removed. It is helpful to retain that data because if someone comes back into the country on a different name we could verify that that individual in a prior application had been refused asylum and was removed. It is not criminal but it is important for immigration control reasons to keep that information.
The noble Earl talked about penalties and being imprisoned and charged. The penalties in this Bill are not criminal but civil.
Perhaps I did not make myself clear. If it is compulsory to have an identity card it cannot but attract penalties, and penalties must be criminal. There is no way round that. It is a criminal offence not to give in your driving licence within five days. It must be criminal once it becomes compulsory. It is unavoidable.
We in Parliament are entitled to determine whether something is criminal or civil. We collectively are of the view that the penalties which are appropriate under this Bill should remain civil and not criminal. Parliament, I am sure your Lordships will be reassured to know, is still sovereign.
If you do not carry your identity card when it is made compulsory and if, because you do not carry it, you are fined, it does not matter whether it is a civil or criminal conviction. In my book, it is criminal because you have got no option but to pay it. It is a fine, and a fine is a fine is a fine. It is not a subscription to a gentleman's club.
I am sorry to delay noble Lords from their dinner for a few seconds more. It seems to me that with such a wide discretion being given, even if there are good reasons for using it on occasion, this is a subject that the commissioner should specifically make reports on from time to time. Reading Clause 25, I think he is entitled to. I may want to come back later, however, with the suggestion that this provision is so wide a discretion that there ought to be a specific requirement for the commissioner to report on it.
I am grateful to all noble Lords who have contributed to this short debate. My noble friend Lord Crickhowell has put his finger on the pulse of why we are concerned about this. The provision is exceedingly wide.
That said, I fully understand the desire of the Government to have flexibility. Indeed, I find the desire and need for flexibility eminently sensible. Here, too, however, the noble Lord, Lord Phillips of Sudbury, has firmly put his finger on the pulse as to why the provision, as drafted, is so worrying; because, notwithstanding the examples that the Minister gave, the intent appears to be to circumvent the limitations that we are attempting to put in the Bill, such as the three months residence limit, the age limit and what have you. I concede that the examples she has given are very much on the margins of those issues. There are other examples one could think of, however, whereby the limitations we are attempting to impose upon qualification for an ID card could become so broad as to make them meaningless under this clause.
Nevertheless, I do not want to delay people from their dinner any longer. With a cast-iron guarantee to the Minister that we will return to this issue on Report, I beg leave to withdraw the amendment.
I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage should resume not before seventeen minutes to nine.