In moving Amendment No. 55, I shall speak also to Amendments Nos. 167 and 187. Amendment No. 55 is simplicity itself. It guarantees that details of any entry made in the register must be provided to the person in respect of whom that entry is made. What could be unreasonable about that? Without such clarification—without such assurances that information about an individual will not be stored, added to or removed without his knowledge—the citizen would be in a position of insecurity.
Amendment No. 167 inserts a new subsection into Clause 12. That clause sets out how we shall have to notify changes in circumstances to keep the national identity register up to date. If we fail to do that, we face a civil penalty of up to £1,000. It is therefore important that systems are in place to enable us to carry out that duty effectively and easily without facing the threat of a penalty—or a fine. As my noble friend Lord Onslow said earlier today, whatever one calls it, it will feel like a fine. Amendment No. 167 gives every individual entered on the register the right to be sent a copy of the information held on him by the Secretary of State.
I emphasise that Amendment No. 167 is a probing amendment because I realise the cost implications of doing what it requires. The purpose of the amendment is to probe how the process will take place, particularly because when my honourable friend Patrick Mercer moved this amendment in another place on
Amendment No. 187 is in a similar vein to Amendment No. 55. It inserts a requirement in Clause 14 for the Secretary of State to supply an individual with all or any of the information recorded about him on the register, if that individual asks for it. I beg to move.
I shall speak to Amendment No. 80, which is grouped with Amendments Nos. 55, 167—which stands in my name—and 187. There is little to add to the succinct and effective explanation of the need for this group of amendments just given by the noble Baroness, Lady Anelay. I hope that it will not be contentious for anyone who wants to know the state of play on his or her data register entry to be allowed to know. In case the Government are going to say that people have that right under the Data Protection Act, I do not think that that is enough. This is classically a case where that right should be in the Bill so that any person reading the Act, as it will then be, can know where he or she stands.
Amendment No. 80 provides that no fee shall be charged for a copy of an entry unless a person has already had a set of copies within the past year. The amendment allows the Secretary of State to make regulations in relation to that. It also spells out the fact that, in getting a full copy of all past and present entries made in the register, a citizen is also entitled to details of authorisations given under Clause 22. As noble Lords will know, Clause 22 entitles the Secretary of State to give public authorities—which are extremely widely defined—the right to all the information on the register, bar paragraph 9 audit trail data where,
"necessary in the public interest", which is defined in Clause 1.
We expect that early in the life of the legislation the Secretary of State will make general orders entitling public authorities to call up information under Section 22. It will therefore be important for the individual concerned to know how often and to whom details of his or her particulars have been supplied under the authorisation of Section 22.
During the short debate on Amendment No. 53, we discovered how wide the discretionary power of the Secretary of State to make entries in the register consistent with the statutory purposes is. We know that the statutory purposes are widely drawn. Although the Minister who replied in that debate gave us some limited and persuasive examples, she did not deny the fact that the scope of the clause was much wider. It therefore seems essential that individuals who may be affected should know exactly what the entry will be. Any other situation would be intolerable. That information about an individual that may be of considerable importance should be placed on a register, and placed there because the individual is considered to be infringing national security or some other crucial matter, without the individual knowing about it would be an extraordinary imposition on individual rights and freedom. It has been said the Data Protection Act perhaps provides for such an entry of information, but this amendment must be made to the Bill. My noble friend drew attention earlier to a case that has received publicity which suggests that the Data Protection Act can perhaps be overruled by later action and legislation. So for all those reasons, and I suspect that there would be a good many others if we were to probe the matter at greater length, I strongly support my noble friend's amendment.
This amendment is entirely logical, because if one does not know what is on the register, how does one correct it? After all, Clause 12(1)(b) states that a person to whom an identity card has been issued,
"must notify the Secretary of State about every error in that information of which he is aware".
If you do not know what the information is, you do not know how to correct it.
My second point is on identity theft. EURIM, the all-party Parliament industry group, of which I am a member, has been discussing ID cards for longer than the Labour Government have been in power because they were first mooted under the Conservatives. We became aware that one of the big problems with the scheme is how one detects whether identity theft is taking place. The most likely person to spot that is the citizen himself. If the citizen is unable to find out what is happening, he cannot be aware that his identity has been stolen. EURIM has suggested a triangle or circle of trust, whereby a broker in the middle would make people aware of what was on the register. It would be along the lines of the credit card model, where you can check up on what information is being held about you and what inquiries people are making about you. It is very important that this information is released to the citizen. Otherwise, he will not know what is going on.
I shall go very carefully through the various amendments and their implications, and the effect of the clause. I apologise in advance for any imperfections in my explanation. I am sure that the noble Baroness, Lady Scotland, will put them right when she reappears at the Dispatch Box at some later stage.
Amendment No. 55, which relates to Clause 2(4), would require us to notify any person who is registered under that clause with details of his entry. The noble Baroness, Lady Anelay, said that the amendment is very simple, adding that it is not an unreasonable request. On the face of it, the amendment does appear to be very simple and not unreasonable. However, the amendment contains no exceptions to the requirement. In our view, it is unnecessary and inappropriate to add specific provisions to the Bill in this way.
It is important to appreciate that even verification of information on the register would be caught by the effect of the amendment, as any verification would technically count as an entry on the register. By the later stages of the programme, the amendment could require approximately 500 million notifications per year to be sent out to individuals. A lot of discussions about cost have taken place in your Lordships' House during the progress of this Bill, but it would not be going too far to say that the effect of this amendment would present the agency with very significant cost implications.
In many cases, an entry will have been made at an individual's own request. The Data Protection Act already lays down general rules on notification rights; that is, fair collection principles which require data controllers to inform data subjects of, among other things, the purposes for which information about them is being held. To that extent, we argue that the amendment is unnecessary.
The rules under the Data Protection Act have been carefully considered, and drafted in view of the underlying EU directive. It has already been made clear that the DPA will apply to the ID cards scheme. The Act leaves a certain amount of discretion within the data-controlling authorities when it comes to notification. The obligation to notify applies only "so far as practicable". For example, it may not be practicable to notify someone whose details have been added to the register on deportation to prevent re-entry. Why would that be practicable? Nor does the obligation to notify apply in situations where the exemptions relating to national security and the prevention and detection of crime are applicable.
The majority of people will of course know that they are registered, as they will have applied for and have been issued with an ID card. However, any person concerned that they may have been registered without their knowledge would have data-subject access rights, under the Data Protection Act. The Data Protection Act does not impose an absolute obligation to notify. It is sensitive to matters such as national security, as well as practicalities. We argue this Bill should not provide otherwise. In other words, it should not depart from that fundamental principle.
Amendment No. 167 is, as the noble Baroness advised us, a probing amendment. However, it will place a requirement on the Secretary of State to send a copy of the information held against an individual's entry to the individual's address at least once every two years. Amendment No. 80 is similar, in that it gives the individual the right to request a copy of their record, including details of all the verifications. It also states that individuals may be provided with this free of charge, as long as they do not make more than one request per annum. These amendments would place a large and costly administrative burden on the new agency. It has been estimated that once the register is fully populated, approximately 20 million records would have to be sent out every year if, as in Amendment No. 167, the Secretary of State was obliged to send each individual a copy of their record at least once every two years. In Amendment No. 80 the numbers could be even greater, as each individual is entitled to a free copy of their record once every year.
I recognise that noble Lords have concerns about how an individual will be aware of the information that is held about them on the national identity card register, and that those concerns also relate to the duty of the individual to keep their entry updated. However, the two main changes that will need to be updated are first, one's address, and secondly any name changes. We accept that there will be individuals who change nationality or gender, and even those who need to amend their date of birth, but in essence name and address changes are going to form the bulk of updating information requests. These changes are those which the agency will have been notified of by the individuals themselves; therefore we see no need for the agency to send individuals a copy of the information held on them every two years, as the information came from them.
It will be made clear on registration which changes of circumstance need to be notified. For example, only addresses used for three months or more will need to be notified. The obligation to notify of errors obviously applies only to errors of which the person concerned is aware. There should be no room for doubt about what the obligations are. In addition, use of the verification services will encourage people to ensure that their record is up to date.
Amendment No. 187, similar to Amendment No. 55, would place a duty on the Secretary of State to provide all or any details requested by an individual included on the register, where those details relate to his own entry. Again, we believe that the amendment is unnecessary. The provisions of the Data Protection Act apply to the database in the same way as to any other database. There is no attempt to exclude or modify subject access rights under Section 7 of the Data Protection Act. Anyone will be able to apply for a copy of their entry on the register and will have a right to be provided with it, subject only to the exemptions contained in the Data Protection Act.
I do not believe that an absolute right to receive all the information, as proposed by this amendment, would be desirable. For example, if information had been provided to the police for a continuing investigation into serious crime, this fact would be recorded under paragraph 9 of Schedule 1 and could be monitored by the scheme commissioner, but it would not be appropriate or in the public interest to reveal that fact to the individual under investigation.
In addition to formal subject access rights under the Data Protection Act, it is planned that an individual will be able to read his card and register entry easily. For example, we expect to offer a service whereby an individual could read the information held on his entry securely via the Internet. Individuals will be able to check the detail of their entry on the register and information regarding verification requests made against it in the previous six or 12 months via a secure web portal—and this will be free. Individuals will also be able to telephone the call centre to check their details, which will be free to the individual, apart from the cost of the phone call.
A full subject access request under the DPA would be subject to the reasonable fee allowed for by that legislation, which is currently £10. Although plans have not yet been finalised for requests of information held on the register which are not done via the Internet, it is apparent that they—unlike Internet checks—incur expenditure in terms of human resources to carry out the check. There would be little difference between a manual limited check and the full subject access request under the Data Protection Act in terms of resources used. It is the case that the Internet is becoming more widely available, with many public facilities, such as libraries, offering access. I stress again that no decision has been taken on this, but it is clearly appropriate for the Secretary of State to have the facility to levy an appropriate charge for offline inquiries.
I apologise for the length of my response, but I believe that it has probably answered most of the points that were made in the opening comments. For all those reasons, I suggest that the amendment should not be pressed to a Division.
I am grateful to Members of the Committee who have given support to this amendment, and thank the Minister for his, as ever, courteous response. However, I am disappointed with his response, because there is a failure of a meeting of minds on the basic principle. I do not believe that the Data Protection Act is a sufficient protection. The Minister adduces arguments about IT access being more widely available, so that people can get access that way; but I am always wary about expecting that everybody, vulnerable or not, can have access through IT. I am also wary about access by telephone because one is not able to verify the text—one is relying on a relaying of the information to that person.
The Minister said that my amendments were at best unnecessary and at worst imperfect. I would say that the Bill was imperfect in parts as well. I do not feel that I would be able to progress further if I brought the matter back on Report. I feel strongly about it, and therefore tonight I wish to test the opinion of the Committee.
In moving Amendment No. 67, I shall speak also to Amendment No. 68, which stands in my name. I note that Amendment No. 67A, which was a late entry into the list in the name of my noble friend Lord Peyton of Yeovil, is also in this group. My noble friend remarked to me earlier that he would not be able to be here at this late stage. He asked me to convey his apologies to the House and said that if on reading the debate in Hansard on the remaining amendments in this group he felt that it was not appropriate to bring it back on Report, he would not do so. On the other hand, he may find that he needs to return to it on Report; so we await that with interest.
We have had some long and ultimately inconclusive debates on Clause 1 about what may or may not be registered. The link was never clearly elucidated between Schedule 1 and Clause 1.The noble Lord, Lord Phillips of Sudbury, carefully pointed out some of the mismatch between Schedule 1 and Clause 1. Here is another set of information purporting to define what may be registered. Clause 3(1)(c) is rather muddy and needs to be explained. My question is simple—what are the,
"purposes connected with the issue or cancellation of ID cards", for which,
"information of a technical nature" can be stored?
I looked in the Explanatory Notes for help but came there none because they were silent on this point. The Explanatory Notes did say something else that rather intrigued me on Clause 3(1); namely, that people's emergency contact details might be included on the register. Where would that information come from? Could anyone just write in, as provided for in Clause 3(2)? That information is not listed in the schedule, but I suppose it could come under the Government's outer limit of a catch-all in Clause 1(5)(i). I wonder how it could be accessed in an emergency and how access to it could be controlled.
Amendment No. 68 refers to Clause 3(2)(c). It looks at the ability of the individual to place information on his record that he wishes to have placed there. As currently drafted, Clause 3(2)(c) states that information about an individual must be recorded in the register if,
"the Secretary of State considers that it is both practicable and appropriate for it to be recorded in accordance with the applicant's request".
I have substituted a different requirement of reasonableless, and I have done so to ask the Government to put on the record how they intend to judge what is "practicable and appropriate" to be entered and why they feel that "reasonable" would not be a better test. I beg to move.
Amendment No. 67 would remove the ability to record the technical information necessary to ensure the integrity and operation of the scheme. The ability to manage the security and performance of the register's IT systems is reliant on being able to assess the operation of the system effectively. The information referred to under Clause 3(1)(c) are the key pieces of information that allow this to happen. Necessary technical data includes the network event information and encryption codes that would be used to detect and prevent security attacks and to protect the integrity of the data. Certificate revocation logs ensure that lost or stolen cards cannot be used in attempts to access the register. The clause is also about keeping useful records of card reader and biometric reader information such as current operational status, manufacturing information and fault history. Such pieces of information are well established elements within standard IT infrastructure packages. It is essential information for the security and operation of a database system of this kind.
Clause 3(2) provides that where a person makes a request to add voluntary information to their entry on the register, the Secretary of State must record that information if it is within a description of information set out in regulations and it would be "practicable and appropriate" to do so. During our consultations on the issue of ID cards with the public, the ability to record voluntary information was mentioned frequently as a feature people would like to see on their card. Many people saw the advantage of being able to record information such as organ donor status, blood group, allergies and so on. Since it is possible to do this, we think the Bill should make provision for it where that information is practicable and appropriate.
Amendment No. 68 would replace the requirement for the recording to be "practicable and appropriate" with a requirement of reasonableness. In general terms, what would be "reasonable" to record will be the same as what would be "practicable and appropriate" to record.
However, the requirement for a proposed addition to the register to be "practicable and appropriate" ensures that information that might be "reasonable" to record, because the subject matter was related to identity, for example, but was impracticable to record, because it was too large, or was in a format incompatible with the register, for example, would not have to be recorded. Similarly, it might be inappropriate in the Secretary of State's judgment to include a large amount of detail about matters irrelevant to the purposes of the register.
The noble Baroness kindly advised the Committee that the noble Lord, Lord Peyton, has given his apologies. I entirely understand that and the reasons why, and we appreciate all the time that the noble Lord spends here and value his contributions and it is only right that I should respond to his amendment. Amendment No. 67A seeks to remove the Secretary of State's ability to prescribe what sort of voluntary information may be held on an individual's record.
I regard the power to set out in regulations the type of information which may be recorded under this power as important for two reasons. First, it is right that the Secretary of State should set the parameters for the information which can be included in a way which is public and subject to parliamentary scrutiny under the negative resolution procedure. The categories of information might include medical information useful in an emergency such as blood group, donor status or allergies. But without the filter of the regulation making power, any request by an individual would need to be considered on its merits and the Secretary of State would have unfettered discretion in adding whatever he liked. Individuals might apply to record irrelevant information, such as affiliation to a particular football club, or information which we do not wish to be on the register, such as the individual's religion.
In addition, we would wish to prevent those with malicious intent from attempting to record excessive amounts of spurious data in an attempt to overload the database on which the register is held.
Is it right that the Secretary of State be able to regulate the information which can be held on a voluntary basis on the National Identity Register? We say that it is and that it is practicable and appropriate for it to be recorded, as I have already outlined in relation to the previous amendment. For these reasons we consider these amendments to be unnecessary and I hope that after hearing our argument on this that the noble Baroness will feel able to withdraw her amendments and I hope that when the noble Lord, Lord Peyton, has read Hansard he will feel confident in our response.
Before the noble Lord sits down, I would like to add that I waited to hear what he was going to say in response to Amendment No. 67, which was tabled by the noble Baroness, Lady Anelay. I must confess that having heard his reply I see the point of her amendment. My question is at once simple and yet of course not simple and I apologise for bowling an extremely fast technical ball at him at 9.25 at night. Maybe he will have to answer in writing. My question is this: what is lost by the omission of paragraph (c), as proposed in Amendment No. 67, given that the immediately preceding paragraph covers precisely the same ground? That paragraph talks about information of a technical nature for use in connection with the administration of the register. I cannot think that the issue and cancellation of ID cards is not plumb within that phrase,
"in connection with the administration of the Register".
If that is so, it is surely a mercy to eliminate spongy excesses such as paragraph (c). I should be very grateful if the Minister would answer that question, either now or hereafter.
I may well be reliant on a note to answer that point rather than corresponding with the noble Lord. Paragraph (b) relates to the register and paragraph (c) relates to the card. That is the answer to the noble Lord's question.
The Minister has distinguished between the register and the cards of which the register is the register. That seems to me a banal explanation, but I will think more about it and perhaps talk to the noble Lord outside the Chamber.
I am grateful for that late intervention by the noble Lord, Lord Phillips of Sudbury, because I have been tussling with the same difficulty in relation to paragraphs (b) and (c). Paragraph (b) has to catch paragraph (c) as well because you cannot be issued with an identity card unless you are on the national identity register, which is being administered. So one administration covers the other. I certainly tabled this as a probing amendment, and it remains just that. I was hoping to go forwards but, with some of the questions eliciting unexpected replies, I think that I am going backwards again.
However, I appreciate the courtesy of the Minister. I understand exactly what he said on Amendment No. 68. I shall not return to that amendment. I accept that he says it could be reasonable to enter something but that it would be impracticable to do so. When he gave that answer, I also found it alarming that the Government were worried about huge amounts of information being added, whereas that is in any event what they are predicating by the whole system. As for the picture of people hating the system so much that they want to make it collapse by entering huge amounts of information, I suspect that some people may want to make it collapse not because they hate the system but because they want to manipulate it. That will take us back to some of the problems that we have in relation to security.
I am grateful to the noble Lord for his great courtesy to my noble friend Lord Peyton of Yeovil, and I await with interest his response to the noble Lord's answer. I beg leave to withdraw the amendment.
moved Amendment No. 69:
Page 4, line 8, at end insert—
"( ) Where a new identity is entered in the Register by agreement between the Secretary of State and an individual and they both know the identity is not a true identity, the Secretary of State shall keep a record of the true identity and this information will be entered in the Register after 100 years from the date of the first entry of the agreed new identity."
In moving Amendment No. 69, with the leave of the Committee I shall speak also to Amendments Nos. 71, 72 and 74, which are grouped with it. Clause 3 sets out the information that may be recorded in the register. Amendment No. 69 raises questions about what happens when the Secretary of State records on the register an identity which he knows to be false—for example, that of a person who is covered by a witness protection programme.
It is disappointing that earlier this year we did not have time to debate the measures in the Serious Organised Crime and Police Act that are directly relevant to this matter. The Government's calling of the early general election meant that we rushed through the whole Committee stage in a day in wash-up. I fully accept that that was the fault of all parties because it was done by agreement through the usual channels. All parties agreed that it was a very important Bill and that it had to go through quickly. But that is an example of where agreement between parties for the best of all possible reasons—the security of the country—means that some issues are not given the proper consideration that they deserve.
My amendment would ensure that the Secretary of State would preserve a record of a person's real identity, and that real identity would be entered in a national identity register after 100 years. I realise that, even with increased longevity, that will be after the person about whom the information is recorded has long departed this Earth. But there is a reason for my proposal. If the original identity is never entered, what will happen to it? How will people in the future ever know that that identity existed? It is a matter of great interest to family historians on a personal basis, and it is also important to Mormons, who are required to pray for their ancestors.
Amendment No. 72 goes on to allow the release of information after 100 years for historical research. Subsection (4) allows information to be kept,
"for so long as it is consistent with the statutory purposes", for it to be so kept. The Explanatory Notes argue that that will make the verification of individuals easier by ensuring that an audit trail of changes is made.
Amendment No. 71 asks the Government to explain their requirement that the information can go on being recorded if it is consistent with the statutory purposes. My amendment places the higher requirement that the information has to be necessary for the statutory purposes if it is to continue being held. Amendment No. 74 extends that higher requirement of necessity to the Secretary of State's power to make an order adding a requirement of more information to the list of matters that should be recorded as registrable facts. I beg to move.
The rather depressing thing about this amendment is that it lights up something I hoped one would be able to avoid: it assumes that this wretched Bill is going to be there for 100 years. I had hoped that we could scrap this register and its attack on our freedoms much earlier than that. I suppose I am in a minority, though not too much of a minority.
My noble friend Lady Anelay of St Johns raised a very important point about people under witness protection and about spies. If we wish to have spies, which we obviously do—especially nowadays—their identities have to be hidden. I assume, and hope, that this can be done and that, in effect, lies and false entries will be able to remain upon this wretched register—if we must have it—for national security and the safety of those who have decided to bear witness in the cause of good laws and punishment of the ungodly.
I congratulate the noble Earl, Lord Onslow, on his trenchant views on this subject. I am enjoying his interventions in this Bill, as I enjoy most of his interventions on most Bills. I think these are interesting amendments. I hope that when the noble Baroness, Lady Anelay, has heard what I have to say about them she will accept that, while they raise interesting questions, perhaps now is not the time to put them in place. I shall pursue the amendments further, and the noble Baroness can come to a view of her own.
Amendment No. 69 would require a person who has changed their identity, for example because they have been protected under a witness protection scheme, to have the original identity entered on the register after 100 years. Amendment No. 72 would require information from the register to be made available for historical research not less than 100 years after the first entry relating to an individual. As I have hinted, I have some sympathy for those who see information from the register as a source for possible use in future historical and genealogical research. However, I have to say that I do not think we should make a commitment to that in this Bill. It would be more appropriate to wait until a register is in place and has, perhaps, matured a little. Then we can judge how people might view the possibility of making information available in due course for historical research.
Clause 3(4) provides that,
"information may continue to be recorded in the Register for so long as it is consistent with the statutory purposes for it to be so recorded."
Amendment No. 71 would take out the words "consistent with" and replace them with "necessary for." Clause 3(6) empowers the Secretary of State to make an order adding to the information, which may be recorded in the register where he considers that it would be consistent with the statutory purposes to do so. Amendment No. 74 would change that test to one of necessity for the statutory purposes. The noble Baroness, Lady Anelay, has explained that the amendments impose a higher test than the one currently provided for in the Bill for the retention of existing information and the addition of further information. I also assume that she is seeking consistency with the fifth data protection principle, which provides that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or purposes.
The second of the two statutory purposes in Clause 1(3)(b) is to provide a secure and reliable method for registrable facts about individuals to be ascertained or verified wherever that is necessary in the public interest. The tests in Clause 3 of,
"consistent with the statutory purposes", must therefore be read in light of the necessity test which is built into the statutory purposes. The net result provides no less protection than would a double necessity test. Furthermore, it is not inconsistent with the fifth data protection principle.
I understand the reasons for the noble Baroness's amendments and I have expressed some sympathy for releasing information from the register after 100 years, but it is probably too soon to make such a decision. On the other amendments, I think that we agree on what needs to be achieved, but I do not necessarily accept the need for her amendments in the way in which they are framed. So I invite the noble Baroness to withdraw the amendment.
The noble Earl, Lord Onslow, made a point about false identities for people in witness protection programmes, which is exactly what Clause 3(3) is for. If the Secretary of State and the individual agree an entry can be made under Clause 3(3), and it is deemed to be accurate and complete—that is, a true entry on the register. I hope that that matches and meets the noble Earl's point—I do not think that there was any other question that I was supposed to answer.
I am grateful to the Minister for almost showing sympathy towards the amendment. I dread to think how long I will have to wait until the right action is taken. I certainly hope that it will not be 100 years. I would not want my noble friend Lord Onslow to think that I expect the register to last 100 years—certainly not in its current form. I hope that we will be able to improve the way in which the Bill may operate during its progress through this House.
I know that the Minister intends to make extremely helpful remarks. He said that I should wait until the register has matured. We will see how it is operating and whether information may at some stage be released—whether after 100 years or less. How would that be achieved within the provisions of the Bill? Is the Minister, for example, saying that Clause 3(4) has the power to enable information to be released? Is he saying that the Secretary of State could adjudge that it would be no longer,
"consistent with the statutory purposes for [information] to be so recorded", at a later date? That would not necessarily release the information. It would be held and recorded, but it would not be released. Where is the mechanism here for that information to be made public and to be released at a later date?
I appreciate that it is late and that this is a consequent question to my amendment. If the Minister is not in a position to answer today, I am very happy for him to write to me. This is not a matter on which I intend to divide the Committee. This is genuinely a probing matter to see how information may be later released. An answer may be winging its way to the Minister.
When I was reading the clauses, I assumed that there might be an order or something that there is not. There is no power under Clause 3(4) to publish in the way in which the noble Baroness adduces. Fresh legislation will be needed for that. That is the answer to the noble Baroness's question.
If that is the case and if the Minister was saying, which I think he was, that we should let the thing bed down and that then, if we think that we ought to be able to do it, we will do it—he has now come forward and said that there is not the power in the Bill to do that—surely, the answer is to get his legal eagles in the Box to draft an amendment on Report which will allow him to do it. Then everyone is off the hook.
That is an interesting thought, and it is perhaps a little unusual for the noble Earl to argue the case for a fresh order-making power to be written into a piece of legislation. I am not sure that I have heard him argue the point before, but I am challenged by the novelty of it.
I suspect that we probably need to think about this a good deal more and have some more debate about it. I can see that it is an issue of greater substance than perhaps will be provided for in secondary legislation. It may come with the list of improvements that the noble Baroness, Lady Anelay, has suggested she may like to be a part of at some later date. There is perhaps an interesting debate to be had particularly with historians and academicians about the issue, because I can see that it is of value. However, we would need to be very careful about the way in which we framed it, as we are about matters such as the 30-year rule, which of course has a great benefit in terms of the release of information from the Public Record Office and so on.
The Minister will be very pleased to hear me say that I do not take it that he has given a commitment to any change in the Bill. I appreciate that. I, too, was interested to hear my noble friend Lord Onslow talk about another order-making power. He, of course, is asking for a good order-making power, unlike some of the 60 or so that are currently in the Bill.
On a serious note, it is a matter that would benefit from calm debate between us. Genealogical research is taken very seriously. Historical research will be given real value in this register, if it is properly managed. I think that the historical aspect of it is far more useful than anything that the Government are trying to achieve by imposing identity cards on us in this way; but that, of course, is a personal view that I am not allowed to express from the Front Bench.
Since the noble Baroness has almost invited an answer from me, as someone who takes a great interest in and is a student of history, I share that view—we probably have it in common. Whatever we think personally and privately about the way in which the legislation is developing, there is a great value in this information for future generations in the way in which it is being collected and held.
On that happy note, with the added rider that we must ensure that the information on the register is accurate, I beg leave to withdraw the amendment.
moved Amendment No. 70:
Page 4, line 8, at end insert—
"( ) In cases where subsection (3) does not apply, the Secretary of State shall be liable for inaccurate information recorded about an individual and all consequences of any such inaccuracy to—
(a) that individual;
(b) any person to whom the information is supplied;
(c) any person to whom false information is verified by the Register; and
(d) any person to whom true information is shown to be false in verification by the Register, and, where there is such inaccuracy, each such person may bring an action for damages against the Secretary of State."
Compared with the genealogical speculations about which we have just heard, which I too share, this is a rather down-to-earth amendment. It is a limbering-up amendment so that we can get something right for the next stage of the Bill. It is plain on the face of the amendment what it is about; namely, allowing a citizen who has acted on the basis of information in the register that is wrong, who therefore suffers as a result, to follow the usual principles of negligence and be able to recover from the state.
I am the first to admit that it is not an amendment that I would go into battle for, because it does not deal with a situation in which the individual has been partly responsible for the falsity of his register entry. That issue will need to be taken care of. However, I do not think I need say any more, but I shall be interested to hear what the Minister says. I beg to move.
This is an interesting matter about liability, in relation to which many problems arise with ID cards and suchlike. If you use as a means of identification a passport that for some reason is a fake or false, there is no liability. I do not think that it falls back on to Her Majesty's Government at all. In a funny way, that is why people are free to use it as a perfectly good identity document. From that point of view, the ID card could be treated in a very similar way. If it looks okay, it is probably okay and is probably better than many of the other forms of identification out there—it is certainly as good as a passport—and therefore would be very useful for proving identity on a "flash and go" basis.
Matters change when we come to the national identity register. On that register there is a good deal of other information, which may lead someone down the wrong path and in the wrong direction. If, for instance, two numbers are transposed in the linked numbers in linked databases, which misidentifies someone on the national insurance number register so pensions do not get paid or something else does not happen, the Government should be held liable for that. Inferences will be made from those connections. If the data are incorrect, the Government should be held liable for that because it could affect people's lives drastically. It is different if a user is just making a judgment that a card looks all right and that the likeness appears to be correct; the national identity register information is critical here.
This amendment raises my hackles in respect of a matter that we debated on the first Committee day: convenience. The weight of the Bill favours the construction of the register on the basis of the state. The convenience of the individual is conveniently forgotten, if the Committee will forgive that phraseology. The amendment may be imperfect but never mind, its great virtue is that it reminds us that what we are aiming for is a system that works for the convenience of the individual citizen. In those terms, I certainly support the proposition of the noble Lord, Lord Phillips.
I imagine that the amendment is designed to ensure that the Secretary of State will take care in ensuring that information stored on the register is accurate, if he knows that he will be liable for damages if it is not. That said, I am not sure that the amendment is desirable.
The rigorous biometric footprint check will avoid inaccurate information being put on the register in the first place, and we have already explained the process by which people will be able to check their entry on the register for accuracy. Any person who was unhappy with the Secretary of State's decision not to modify information would be able to take it up with the agency, which will operate a thoroughgoing complaints procedure. Should it not be resolved, the right to apply to a court for rectification under Section 14 of the Data Protection Act would be applicable. Inaccuracies on the register will also obviously be of concern to the national identity scheme commissioner, who will be able to examine and report on the way in which he was using his power under this section.
I am not convinced that it is desirable to go further and establish a right to damages for inaccuracies regardless of whether any damage has been caused. I would be interested to hear the noble Lord's comments on that.
I am grateful for that helpful clarification. As I say, I am not convinced that it is desirable to go further and establish a right to damages for inaccuracies regardless of whether any damage has been caused; or whether the inaccuracy results from any action taken by the Secretary of State; or whether anyone had behaved negligently or fraudulently. On the face of it, the amendment would make the Secretary of State liable for damages if the register contained an inaccuracy as a result of fraudulent information being provided by the applicant. That cannot be right. For that reason, the amendment is unworkable.
Of course, the Secretary of State will potentially be vicariously liable for any torts committed by staff operating the register. The Bill makes no attempt to exclude liability, and the normal law of tort—I am sure that the noble Lord knows better than I—will apply. Just as it is not necessary to restate the law on data protection, human rights or discrimination in this Bill, it is not necessary to reformulate the law of tort or negligent misstatement. The identity cards scheme will operate within the rest of the framework of the law, as I am sure we all understand. The Bill makes no attempt to exclude liability, and the normal law will apply, as one would expect.
We do not think that the amendment is desirable. I hope that the noble Lord will withdraw it, not least because it is defective.
The noble Lord has provoked a thought in my mind. I had pursued the Bill assuming that two distinct IT processes had to be designed. The first was enrolment—data capture and so on—and the second was data verification. If I understand the noble Lord's response, there is a third, which is data validation. Will he confirm—I shall be happy if it is in writing—that the Government now envisage three distinct IT design processes that must be allowed for in the structure of the scheme?
I am trying to establish the difference between validation and verification. Perhaps the noble Earl will elaborate, and I shall ask our officials to give some further thought to the point.
It is easy to explain; I do not think that the noble Lord should imagine that it is complicated. As a matter of course, data will be captured by the system, which is the enrolment phase. What will then happen, from what the noble Lord said in response to the amendment, is that there will be a process of validation to check whether the data are accurate. Once the scheme is up and running, there will also be a process of verification. There is a fundamental point about IT architecture. All three processes are distinct and disparate. The system has to be designed around them. That is where I am trying to get my finger on the pulse.
I was not seeking an apology; I was scoring points late at night.
I shall consider carefully what the Minister said. He appeared to say that the state would be responsible under normal laws of negligence for negligence, and to that extent the amendment is not necessary. If I have got that wrong, I expect the Minister to put me right.
There will be negligence. Some of us think that there might be quite a lot of it, but when there is negligence and a citizen suffers directly financially because of it, there is no reason on earth why due recompense should not follow in accordance with normal principles of law. If that is the case, maybe it is an unnecessary amendment, and I shall think about it before the next round.
In moving Amendment No. 73, I shall speak to a manuscript Amendment No. 80A, which I lodged earlier in the day, having notified the Front Benches, the Clerks and the Chairmen.
The amendment to Schedule 1 states:
"Page 40, line 4, at end insert—
'No information may be recorded in the Register unless it is a registrable fact as defined in section 1'".
That manuscript amendment and Amendment No. 73, which would leave out subsections (5) to (7) of Clause 3 are designed to clarify a crucial aspect of the Bill.
The noble Baroness, Lady Scotland of Asthal, said on the first day in Committee that the governing clause in this Bill is Clause 1. She said that there could be nothing in the provisions of Schedule 1—"Information that may be recorded in Register"—that was not within the ambit of Clause 1. It is therefore a pity that Schedule 1 has Section 3 as its section reference, whereas it should more essentially refer to Section 1.
My point is a simple one, and I hope the Government will smile upon it because it is in their interests as much as anyone else's to make abundantly clear that, as I put it here:
"No information may be recorded in the Register unless it is a registrable fact as defined in section 1".
That will put paid to a great deal of confusion which might otherwise arise, for example, under Clause 3(5), which allows the Secretary of State to modify by order information for the time being set out in Schedule 1.
If the Minister is willing to accept my manuscript amendment, I shall be happy to withdraw my Amendment No. 73, because it will be perfectly redundant. On that basis, I beg to move.
It will not surprise the noble Lord that I cannot accept either of his Amendments Nos. 73 or 80A. I shall address my comments to the noble Lord on his manuscript amendment.
This amendment would have the effect that information could not be recorded in the register unless it was included in the registrable facts in Clause 1(5). It has always been our intention that no personal information can be held on the register unless it could be defined as a registrable fact. Schedule 1(1) to (4) lists in detail what information may be recorded in the register. It is our view that all of the information in those paragraphs is covered by the registrable facts.
When bringing government amendments back on Report, however, we hope to put beyond any doubt the answer to a point which the noble Lord, Lord Phillips of Sudbury, has made in earlier debates as to whether Clause 1(5)(b) allows us to record someone's principal place of residence. I stand by what was said earlier on that issue, but we are, as always, grateful to the noble Lord for raising the point. It is our intention to make the position even clearer than it currently is.
Clause 3(1) provides that the only information which may be recorded in the register is that included in Schedule 1; information of a technical nature for the administration of the scheme and the issue of cards; and voluntary information. If this amendment were accepted, it would have the result that the register would not be able to hold information of a technical nature that is contained in Clause 3(1)(b) and (c). The result of this would be that, without the technical information, the register would be unable to function. The noble Lord may have a secret desire for that to be the case, but I do not think that is the intention of the amendment, and I am sure that noble Lords would not wish to exclude information of a technical nature if the result was that the register would be rendered useless.
I understand the concern behind the noble Lord's amendment. I hope I have convinced him that it is undesirable.
On the understanding that we shall bring something back on Report on the specific point of principal places of residence, I invite the noble Lord to withdraw the amendment and not to press the earlier amendment to which he referred.
I am grateful for that response. I believe that the reference to principal residence is necessary and I am glad that it is to be put in. I do not wish to exclude the technical information in Clause 3(1)(b)(c) and (d) and I hope that the Minister will address the substance of my point in this manuscript amendment which is to make absolutely clear in Schedule 1 that the information in it is confined to Clause 1 and to the technical parts in Clause 3. I return to this matter again and again. As far as possible we must make this a citizens' Bill; it is about a citizens' identity register. I am sick to death of hearing arguments by fancy lawyers, whether in the House or outside it, saying, "If you look at subsection (6) and subsection (27) and some other subsection you will find the answer you need". From this House we should be able to produce legislation that, as far as possible, is user-friendly—I do not mean lawyer-friendly, I mean citizen-friendly. Given that it is quite ridiculous that Clause 1 at no point makes any reference to Schedule 1, which is bizarre, we should at least put in Schedule 1 a clear reference to Clause 1 to guide citizens to an understanding of what is an essential part of the Bill.
The noble Lord knows that I share his aspiration about citizens' law. I spend a good deal of my professional life arguing that the law should be transparent, evident and obvious to people and that mystification of legal processes is an enemy of everyone. I am completely with the noble Lord on that point. The only undertaking that I am prepared to make on his point, however, is that I shall discuss the matter with officials further, as the point is well made. I do not know whether we shall return in entire agreement with the noble Lord on the way in which Clause 1 works. I think Clause 1 is a very clear clause which describes the purposes for which the legislation has been put in place. I give that undertaking. I do not want to prolong the argument, but I hope that that is helpful to the noble Lord.
Is it not significant that during our discussions this afternoon the only interventions that we have heard from lawyers have been very brief ones from the noble Lord, Lord Renton, and the noble and learned Lord, Lord Ackner?