Identity Cards Bill

– in the House of Lords at 8:00 pm on 12th December 2005.

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Votes in this debate

House again in Committee on Clause 5.

[Amendments Nos. 107 to 111 not moved.]

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

moved Amendment No. 112:

Page 5, line 20, leave out ", and other biometric information about himself,"

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

Amendment No. 112 picks up the theme of exploring the relationship between Schedule 1 and the rest of the Bill. It asks the very straightforward question of what other biometric information may be added in future to the Government's expressed requirement that fingerprints, iris scans and face scans should be registered. Earlier today, the noble Lord, Lord Phillips of Sudbury, addressed a slightly different point when he probed whether an iris scan was an internal or external characteristic. My question is different, because it asks what the Government have in mind as other biometric data. The difficulty is that if the Government are not able to give the Committee information on this now, we suspect that their calculations on costs will become even more haphazard because any change to the collection of biometric data will have an impact on their collection and storage, and there will be an impact on the operation of the readers that will be used by other departments, such as the NHS and the DWP, to check whether people are entitled to the health services or benefits that they claim. I beg to move.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

Amendments Nos. 155A and 172 in this group are tabled in my name. Amendment No. 155A relates to Clause 9 and Amendment No. 172 relates to Clause 12, and they exclude reference to biometric information in those clauses. As the noble Baroness, Lady Anelay, said, we had a long discussion on this earlier this afternoon, and I am content to leave things as they were then because the Minister said she would consider this matter further. Therefore, I propose to say no more.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am grateful for the noble Lord's brevity. We need to have some flexibility in circumstances where it might not be possible for an individual to provide a fingerprint or other biometric data. That is all we are seeking to do and all that this provision does. I hope that answers the point about which the noble Baroness was concerned. If it does not, I shall go further.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

Will the Minister consider the matter further and write to me on it? I appreciate that it may be sensible to say that if somebody cannot satisfy the requirement for all the biometric data—10 fingerprints, an iris scan and a facial scan—it may be appropriate for just one of those specific identifiers to be required of him. I seek assurance that the Government will not in future specify other types of biometric identifiers. I cannot see what else could be designated as a biometric identifier that could later be added. I was seeking that kind of assurance; that there is nothing hiding in the wings. The answer the Minister has given us is to a different question from the one I posed. I certainly accept that what he has said so far contains a lot of sense, but I am looking into the future at what else could be lurking. I do not know whether the noble Lord wants to give a quick reflection on that now or whether he would prefer to write to me on it. I look to him.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I think that, in view of what the noble Baroness said, maybe it would be best if I respond in writing. I think that we can satisfy the point fairly easily.

Amendment, by leave, withdrawn.

[Amendment No. 113 not moved.]

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

Amendments Nos. 114, 116, 156, 173 and 173A are all mine. They seek to set the limit, in Clauses 5, 9 and 12, on what regulations the Secretary of State may make vis-à-vis information that may be required of individuals with ID cards. I take Amendment No. 116 as a specific example in order to try to explain this to the Committee. It affects Clause 5(6). Subsection (6) currently says:

"Regulations under this section must not require an individual to provide information to another person unless it is information required by the Secretary of State for the statutory purposes".

My amendment would strike out the words "for the statutory purposes" and replace them with "within Schedule 1". We have had a lot of discussion over the days around Clause 1 and Schedule 1. I think it is fair to say that the House as a whole—indeed, the Government are included—is anxious to ensure that the facts that may be placed on the register under the Bill are to be constrained within Clause 1, in particular in subsections (5), (6) and (7).

The problem with Clause 5(6) is that it entitles the Secretary of State to require information from anybody applying for an ID card, or with an ID card, where that information is required by him for the statutory purposes. That is a much wider category of information than the "registrable facts" defined in Clause 1. The statutory purposes, defined in Clause 1(3) are—I do not want to read the whole of Clause 1(3)—extremely wide and talk about the facilitation of the provision of a method of ascertaining and verifying registrable facts.

I felt, and I hope that the Government will agree, that it would make life easier for people trying to construe the clauses to which this set of amendments relates if we kept to the formula which otherwise seems to prevail in the Bill—that of describing the right to information on the part of the Secretary of State, or the registrar, to information within Schedule 1. Then we know exactly where we are. It is possible under the Bill for the contents of Schedule 1 to be varied. We have our arguments about that. None the less, that is the way the Bill is structured. I feel very strongly that we should stick to Schedule 1, and not find ourselves in an uncertain position where the Secretary of State might argue that a whole range of facts outside Clause 1(5), (6) and (7) and outside Schedule 1 is his or her entitlement to require, by dint of his interpretation of the statutory purposes.

I hope that that is a sufficient explanation of why this set of amendments has been proposed and I shall of course be interested to hear the Government's response. I beg to move.

Photo of Baroness Seccombe Baroness Seccombe Deputy Chief Whip, Whips, Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Assist the Home Affairs Team)

I speak in support of those amendments to which we have put our names. They are intended to close down the wide definition of "registrable"—I always find difficulty with that word—facts specified by subsections (5), (7) and (8). By confining the meaning of registrable facts to that specified in Schedule 1, they create a finite list of information that must be provided for the register. It is vital that a clearly defined limit on what information is to be included in the register and the powers of the Home Secretary to alter those requirements is set down at the start of this misconceived and unpredictable venture toward the proposed scheme.

The amendments take into account the remarks made by the Delegated Powers and Regulatory Reform Committee at paragraph 8 of its 5th report. It drew the attention of this House to the fact that the power in Clause 3(5) was not confined to information needed to prove identity and extended to other matters, such as previous addresses and terms of residence in different parts of the UK. Therefore, it is still up to the Committee to consider whether the content of the power and its extent is acceptable. I support this attempt to confine the list of the information to be registered to matters related only to identity.

The amendments are not just a clearer way to show what may be included in the register in the Bill; they also remove the information under Clause 1(5)(c), covering previous addresses, and under Clause 1(5)(f), covering previous residential status. They therefore make a substantive difference to the power of the Home Secretary to demand that such information be registered. Will the Minister please explain why such information is required under the Bill?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I listened carefully to what the noble Lord and the noble Baroness said, and I hope that I will be able to put both their minds at rest by carefully going through what would be the effects of the amendments and how we see this part of the Bill working.

The effect of Amendments Nos. 114, 173 and 156 would be that, when an individual applies to be entered on the register, makes changes to their entry or is subject to compulsory registration, the Secretary of State would be restricted to requesting from the individual only information listed in Schedule 1. Amendments Nos. 116 and 173A would prevent the Secretary of State requiring in regulations that the individual provide information outside that listed in Schedule 1.

The ability of the Secretary of State to ask the individual for other information not listed in Schedule 1 is important for the prevention of fraud. That is why it is there. For example, if the details contained on the application form have raised questions about the identity of the applicant, the interviewer may want to ask questions about the place of birth of the applicant's mother. The genuine applicant would easily be able to satisfy the interviewer by answering questions such as that. The fact that the Secretary of State is able to ask such questions will make it more difficult for a would-be fraudster to obtain an ID card in an identity that is not their own.

However, the detection of fraud, important although it is, is not the only reason for the Secretary of State to be able to ask questions about the individual. Some individuals will have complicated and unusual circumstances that require clarification at the enrolment stage. The ability to ask for information other than that listed in Schedule 1 is also important to ensure that the information contained on the register is as accurate as possible. I am sure that Members of the Committee will appreciate the importance of that. Therefore, it is essential that the Secretary of State is not constrained to requesting information listed in Schedule 1.

The words,

"otherwise to provide such information as may be required by the Secretary", do not give the Secretary of State an unfettered power to request any information, relevant or not to the maintenance of the register. Requirements to provide information can be made only for the purposes set out in Clause 5(4); that is, for the purpose of,

"verifying information that may be entered in the Register about that individual", or,

"otherwise ensuring that there is a complete, up-to-date and accurate entry about that individual in the Register".

Amendments Nos. 116 and 173A are similar in effect to the amendments already discussed in this section, so I will not repeat the arguments that I have already made about the necessity of asking the individual for information outside Schedule 1. However, Clauses 5(6) and 12(5), to which these amendments relate, already contain safeguards against the requirement to provide irrelevant information. Any regulations made by the Secretary of State under this section requiring the provision of information must be in accordance with the statutory purposes, which are themselves confined by reference to the "registrable facts". The safeguard ensures that questions asked of the individual will be proper and intent only on preventing fraud and promoting the accuracy of the data on the register. I realise that it has taken a little while to go through that, but I hope that that clarification helps the noble Baroness and the noble Lord.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs 8:45 pm, 12th December 2005

I am grateful to the Minister for that explanation, which I find convincing. I will obviously look at it in Hansard but, as far as I am concerned, that is an end of it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

moved Amendment No. 115:

Page 5, line 24, at end insert—

"(5A) Any individual who is required to attend at a specified place in accordance with this section may apply to the Secretary of State for reimbursement of his travel expenses, other associated expenses and any loss of earnings resulting from the requirement to attend at a specified place and time, and the Secretary of State, before implementing this section, or laying an order under section 6(1), must lay proposals for a scheme to meet such expenses before Parliament.

(5B) In devising a scheme under subsection (5A) the Secretary of State must have particular regard to the needs of vulnerable and disabled individuals required to attend the specified place."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

In moving Amendment No. 115, I shall speak also to Amendments Nos. 119 and 120, which are probing amendments. I tabled them in response to briefings that I received from the Royal National Institute for the Blind. My intention, when I have heard the Minister's response, is to refer back to the RNIB to determine whether it feels that any further assurances or answers from the Government could be elicited either on Report or at meetings with the RNIB between now and Report stage. It may be that we can obviate any further amendments on the subject.

The Liberal Democrat Amendments Nos. 117, 159 and 174 are grouped with my amendments and cover the broad argument about the kind of assistance that should be given to those who are required to attend enrolment centres. Amendment No. 115 would impose a duty on the Government to ensure that the travel and associated expenses of attending at an enrolment centre should be borne by the Exchequer. The Government would be required to set out the likely costs to Parliament before they are able to implement Clause 5. We will of course look more closely at costs when we get to my noble friend Lady Noakes' amendment. This looks at a specific aspect of costing.

The second part of Amendment No. 115 imposes a duty on the Secretary of State to have particular regard to the needs of vulnerable and disabled people who will be required to attend at an enrolment centre. I recognise that the Minister's answer to Amendment No. 105 and its group addressed much of that in giving assurances. I will look at Hansard to see whether they will satisfy the RNIB. I realise that the Minister was not seeking to answer this amendment, but he adduced that the Government were trying to do the right thing and said that assistance would be given to different groups. So we need to look at the specifics.

Amendment No. 119 requires the Secretary of State to consider the impact that the scheme will have on vulnerable or disabled persons when he designs it. Amendment No. 120 would impose a requirement that when the Secreatary of State informs those who have sight limitations that they must attend an enrolment centre, he must ensure that his order to them to attend is in a form that they can understand.

It would be right to put on the record the justification which the RNIB puts forward for these amendments, not only to assist the Government in responding but also to assist other Members of the Committee. The institute points out that there are nearly 10 million disabled people in the United Kingdom. Under Clause 6 the Secretary of State may by order require individuals to attend a registration centre and be entered into the register. This will include disabled people. However, many older and disabled people will not be able to make journeys independently to the registration centres. The RNIB believes that the order needs to set out what assistance would be made available to those unable to make their own way to an enrolment centre either in the form of transport for people with limited mobility or assistance with the costs of arranging transport. The institute makes a strong point.

On 20 January of this year, when the previous identity cards Bill was being considered in Committee in another place, the then Minister, Mr Des Browne, said:

"On the question of registering people through home visits, we are conscious that such enrolment must be convenient. We are making provision to register people who live in remote areas or are unfit to travel. However, it would not be appropriate to write a duty to provide such visits into the Bill"— shades of the Minister's answer this evening—

"as they are one of a range of options that we are considering. Registering through home visits raises security issues that would need to be overcome".—[Official Report, Commons Standing Committee B, 20/1/05; col. 175.]

I agree with that. It is an issue that the Government will be required to address, and I know that they are aware of that. The RNIB would welcome from the Government a full update on the assistance they intend to offer to disabled and older people with transport and the costs of transport, or whether they will opt instead for a widespread home registration or mobile enrolment programme, making assistance unnecessary.

The justification for Amendment No. 120 is much clearer: it is important that people are readily able to understand the order sent to them to attend at an enrolment centre. Even if the Government offer a variety of dates and times, the format used to make the person aware that they need to attend has to be clear because, as we have said, a civil penalty is hiding in the wings if someone intentionally tries to get round the system. Here we have a whole body of people who may have sight limitations or dyslexia. They would have absolutely no intention of thwarting the will of the Government, but may not readily be able to take on board the directions they are given. I beg to move.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I have tabled three amendments in the same group, Amendments Nos. 117, 159 and 174. The noble Baroness, Lady Anelay, has spoken to the group so comprehensively and effectively that the only slip she made at the end of her remarks was to anticipate my amendments on intentionality. At the moment you do not need to have any intention of failing to appear. The amendments tabled by the noble Baroness are rather more detailed and I do not know that they apply to home visits, or rather that they do not specifically require the provision of home visits, whereas mine do. I shall say no more because the points have been made and we hope that there will be some movement on the part of the Government, particularly at this hour.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

The noble Lord makes one error. He should not assume that as the hour grows late, we become more compliant. The noble Baroness and the noble Lord have explained their amendments accurately and to the point and I understand their import. Both the noble Baroness and the noble Lord have stressed that for certain individuals with particular needs and problems, there should be an entitlement to apply for the reimbursement of travel costs. The amendments would also require the Secretary of State, before laying the order for compulsion, to put proposals before Parliament explaining how such expenses would be met. That is sensible in terms of the flow of the amendments. They would also require the Secretary of State to have particular regard to the needs of vulnerable and disabled individuals before requiring them to attend at the specified place. As the noble Baroness said, we dealt with some of this material in Amendment No. 105 and the subsequent iterative process that came from it.

Amendments Nos. 117, 159 and 174 require that regulations laid under Clauses 5, 9 and 12 shall make provision for financial assistance with the cost of attending at a specified time and place. This financial provision would have to be provided for in regulations whenever an individual was required to attend at a particular time and place for the purposes of being entered onto the register or making a change to his entry, or if he was subject to compulsory registration.

When I say this in its baldness it may seem somewhat insensitive—it is not intended that way—but it is our view that to reimburse travel expenses and loss of earnings would be unprecedented and inappropriate for a process of this nature. The Passport Service does not reimburse travel or loss of earning expenses, and nor does the DVLA when individuals travel to take a theory or practical driving test. Individuals cannot claim such expenses when they travel to register a birth or a death, as of course people are obliged to do. Some of those journeys can be quite difficult and arduous, but we accept that when registering births, deaths and so on. There are other instances of a similar nature.

I made plain earlier that we will ensure that the enrolment centres are easily accessible and within a reasonable travelling distance. We have plans to introduce home visits for certain categories of people, as well as mobile enrolment centres to serve those people living in rural and remote areas and those who are simply unable to travel—for example, those in nursing homes or long-term residential care. We would not seek to move a whole population to an enrolment centre; we will bring the enrolment centre to them so that their needs can be matched.

We will also ensure that the needs of vulnerable and disabled people are taken into account. All of the facilities will need to comply with the relevant legislation, notably with the Disability Discrimination Act which has fairly onerous conditions in regard to access—and rightly so; we are proud of it—and applicants will be able to outline their special requirements when they book their enrolment appointment.

The noble Baroness, Lady Anelay, put her finger on the issue when she said it will be a very important part of the Government's obligations to explain this process and to make these particular and special facilities available from the point of enrolment. That will clearly be a challenge for the service but, given the success in recent years of the Passport Service, it is not beyond us; it can be achieved. We have the benefit of very flexible technology—for example, the Internet, websites and so on—and we can make this work practically, which is what we need to do.

Amendments Nos. 119 and 120 would have the effect that the Secretary of State would have to have regard to its impact on vulnerable and disabled people before the compulsion order was laid. In particular, Amendment No. 120 would require the communication of the compulsion order to be sent in a format that is understandable to those who are unable to read a printed letter. We obviously will need to address those issues. This matter cannot be properly addressed on the face of the legislation. We will have to deal with it with advice and guidance. Clearly it is in our interests to ensure that those who cannot easily read a printed letter should have a facility which will enable them to access the information.

As to the amendment relating to the provision of financial assistance, clearly we have very much in mind making provision for vulnerable and disabled people. As regards Amendment No. 120, I can reassure noble Lords that our considerations towards people will stretch much wider than written material. We are in the process of consulting with representative bodies; the noble Baroness, Lady Anelay, referred to the RNIB. We have had help from the RNIB and constructive meetings as recently as 2 December. We will need to continue that dialogue to ensure that we get it right.

I hope that with the assurance that there will be further discussions and that we will give very careful consideration to these issues, the noble Baroness will feel able to withdraw her amendment.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs 9:00 pm, 12th December 2005

Before the noble Lord sits down, I rather felt that what he said related more to the noble Baroness's amendments than mine. My amendments are all couched in a discretionary format; they would not require any compulsory allowances, but would simply enable the Government, in regulation-making, to make provision for financial assistance in appropriate cases and for home visits.

The noble Lord spoke about disabled and vulnerable people, but a whole group of people will be neither of those things—just poor. The 15 per cent of people who do not have passports will tend to be what are called the underclass, being poor and deprived. It will create huge problems if the Government are not able to take note of the fact that to travel an hour on public transport to one of the centres may simply be financially beyond the resources of the family concerned.

I do not see any comparability with people taking their driving tests. We are talking about compulsory registration for the last 15 per cent of the population. For the Government to deny themselves the power to facilitate that on a means-tested basis seems like scoring an own goal. I should be grateful if the noble Lord would think about this further. I do not see why he opposes such an amendment.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I have to resist the amendment. I made the point about comparable registrations such as births, deaths and marriages.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

The noble Lord has already referred to births, deaths and marriages. As I reminded him earlier, his department is trying very hard to put that system on to computer. Its main reason for doing that is for the convenience of people, who will be allowed to ring up. Obviously you cannot ring up about biometric tests, but registering births, deaths and marriages is not now comparable if the Government do what they intend. I remind the noble Lord that it is his department which is doing this.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I agreed, although as I made clear earlier, we have not fixed on a definite number of centres. We have an indication of what the number might be; that was clear from the earlier debate.

There is an element of compulsion in registering births, deaths and marriages. I do not think we can make an exception in this case. However, we have the facility and the flexibility to consider the needs of the vulnerable. I would argue that those on lower incomes have a degree of vulnerability. The noble Lord can read into that what he wishes, but we are intending to be flexible.

The noble Lord says that we do not want to score own goals. We are going to approach this in a sensitive and flexible way. If we did not, it would be more difficult to make the scheme work. It is anticipated as being universal and it would be wrong to make broader exemptions and exceptions than we have. Having said that, we have provided quite a lot of room for manoeuvre for dealing with people who are vulnerable, infirm, elderly, have a disability or do not have easy access to a ready means of transport. We are committed to making a provision there. If there are other difficulties relating to the mobile centres, it is likely that we can deal with those as well.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

In opening, I said that these were probing amendments and that I would refer back to the RNIB before determining what action, if any, I would need to take at Report. I will certainly keep to that, but, like the noble Lord, Lord Phillips, I am concerned about the Government's stance—how flexible will they be in giving expenses to those who are economically or physically vulnerable? My Amendment No. 115 tried to address that.

The Minister said that he was looking at comparable registrations, but it is our choice to adopt passports and driving licences—although if you are a young mum trying to get your children around there may seem to be no choice. Finding the money for a car is important, but it is still a choice. However, after Clauses 6 and 7 come into play there is no choice about registering for an identity card, so I do not accept that there is a proper comparability.

On the other hand, I know that the Minister is also seeking to address the issue of births and deaths. My noble friend Lady Carnegy was right in trying to point out that the Government themselves are trying to find another way for those registrations to take place. I understand why the Government are taking this route. I hear what the Minister says about it being sensible to try to assist people, but between now and Report we need to see how the Government are prepared to address those problems.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I want to make one further point. I thought that the noble Lord, Lord Phillips, said that it would be simple to have a means tested approach to this, but we are trying to constrain costs. If we were to set up a system to process a poverty test for the lowest incomes in the way that the noble Lord seemed to suggest we would run the risk of adding to the complexity and cost. That is why we want to be as flexible as we can in terms of being the provider of the service and taking it out to those who are vulnerable or disabled or unable to get themselves to a point of enrolment when they have to attend to make changes to the register.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

The Minister referred to what I said about a means test. For example, one might think of people on social security being given a travel voucher automatically if they have to take a one-hour train journey. That would not give rise to a huge bureaucracy, but I worry whether the Government have the power to do that without an amendment such as one in this group.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

This just goes to show that there will be some constructive discussions between Committee and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 116 and 117 not moved.]

Clause 5 agreed to.

Clause 6 [Power of Secretary of State to require registration]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

Amendment No. 117A stands in the name of my noble friend Lord Peyton of Yeovil who, before he unavoidably had to leave the House earlier this evening, asked if I would move this amendment on his behalf since it leads a group of amendments which stand in my name. I will speak to my own Amendment No. 118 and Clauses 6 and 7 stand part and Amendments Nos. 133, 135 and 136.

In my defence, I make no apology for taking considerable time in introducing this group of amendments. It is the only occasion on which I will be speaking at any length in Committee. This group of amendments is crucial to our debates on the Bill. It is unfortunate that it comes up at this stage of the evening, but no doubt that is the fate of many an important amendment. The question is whether it is right to allow the transition from the so-called voluntary system of ID cards into an all-out, compulsory scheme to be made by way of delegated legislation, or whether it should be done by primary legislation. We say that it should be done by primary legislation. It is a matter of public importance, it is a skeleton Bill, and we need to be able to respond effectively to the impact of the so-called voluntary period of registration on the whole process.

The Government want to slip into full compulsion by way of order, albeit by the new and untried process of the super-affirmative statutory instrument. We say that process may be fundamentally flawed for such an important transition to full compulsion. My amendments ask the Government to justify the super-affirmative process itself and ask questions about how it would operate if the Chamber ultimately decided that it would be right to go down that route instead of insisting on primary legislation.

In the memorandum submitted to the Delegated Powers and Regulatory Reform Committee by the Home Office, at paragraph 34, the Minister says:

"The department's view is that although the principle of compulsory registration is a very significant one, that principle will be debated and decided during the passage of the bill. Once the principle of compulsion is accepted, the phasing of implementation is a suitable matter for subordinate legislation and the super-affirmative procedure set out in clause 7 provides an appropriate level of parliamentary scrutiny".

We submit that the Government have not yet in Committee proved the case for all-out compulsion based on the provisions of this Bill. This is merely an enabling Bill, which leaves significant questions unanswered. We shall of course continue to listen to the Government in Committee—and I made it clear at the beginning that I would not vote on clause stand part debates, because I take very seriously our duty to listen on these major issues.

The Home Affairs Committee in another place felt that the,

"the move to compulsion is a step of such importance that it should be taken only after the scrutiny afforded by primary legislation: the proposed 'super-affirmative procedure' is not adequate."

That was in the committee's fourth report at paragraph 248. We agree with the committee in that view. The House of Lords Constitution Committee felt that since,

"these measures reflect a significant change in the constitutional relationship between the State and the individual, we consider that the change to a universal and compulsory scheme should not be brought about by secondary legislation, even by a 'super-affirmative' procedure".

That is from paragraph 12 of the committee's fifth report of Session 2004–05. That conclusion was reiterated in the committee's third report of Session 2005–06, at paragraph 9, when it said that,

"it would be preferable to separate the two phases in order that the compulsory phase would have to be introduced by primary legislation. This would enable Parliament to ensure that the legislation fully reflected experience gained, especially about safeguards, during the voluntary phase".

Again, we agree with that view.

The Delegated Powers and Regulatory Reform Committee stated, at paragraph 19:

"Although the Secretary of State's proposal is amendable under the super-affirmative procedure, the procedure does not provide the same level of scrutiny or opportunity for debate as a bill. We consider that the super-affirmative procedure is not an appropriate alternative to a bill for potentially controversial measures of great public concern; and this is consistent with our attitude to other super-affirmative powers and their use".

Again, we agree with that view. Then, at paragraph 20, the delegated powers committee goes on to say:

"Any assessment of the appropriateness of this delegation of power is dependent on whether one considers this bill as introducing a voluntary scheme which may gradually be extended towards compulsion, or a bill which provides for a compulsory scheme preceded by a voluntary stage. If the former (i.e. if the House is not at this time willing to endorse the principle of a compulsory scheme for all), then the power in clause 6 is inappropriate and a compulsory scheme should only be introduced by means of a bill. If the latter (which accords with the Minister's invitation at second reading and with the provision in the bill and policy in the memorandum), then the power in clause 6 is the most appropriate method to commence a compulsory scheme. We have taken the latter view, that this bill legislates in principle for a compulsory scheme of identity registration for all; and that the super-affirmative procedure proposed for its introduction is thus the most stringent available secondary legislative mechanism for its scrutiny".

The Government have latched on to that as a justification for retaining the super-affirmative process. But there is, I would argue, a fundamental flaw in the Government's assertion that the delegated powers committee report gives them a free pass.

The committee's report endorses the super-affirmative process on the basis that this Bill is one,

"which provides for a compulsory scheme preceded by a voluntary stage".

We disagree with that conclusion. Our debates so far have alluded to the fact that Clause 5 in particular makes it clear that the initial phase is compulsory and not voluntary. If one applies for a document that is designated, then one must—not may, must—also apply for registration in the national identity register and thereby qualify for the identity card even if one does not wish it.

So the initial phase, we say, is one of effective compulsion for up to 85 per cent of the population. We therefore say that the provisions of the Bill do not fit neatly into the categories described in the Delegated Powers and Regulatory Reform Committee's report. We maintain that any change from the initial period to that of all-out compulsion must be by way of primary legislation.

We recognise that the super-affirmative proposal is both novel and interesting, but we do not believe that it will be the solution to the real question. The question is: would the process ensure that the legislation fully reflected the views of both Houses about the experience gained, especially about safeguards during the voluntary phase?

At Second Reading I referred to my concerns about the super-affirmative process and whether it would allow this House full power of amendment and rejection. The Minister has sought to reassure us that we will be able to force amendments or deletions to the original report. The Minister has occasionally repeated that we will be able to force changes to be made and then that we will be able to reject the statutory instrument. But is that really the case? Surely the cat had been let out of the bag in another place in July when, in response to a question from Mr Carmichael—

"What happens if one House modifies and the other does not? What procedure is followed thereafter?"— the Minister in charge of the Bill for the Government, Mr Burnham, said:

"I guess that the procedure would be the same as it is now; the elected House, with primacy, would prevail. I would not want there to be any procedure other than that. I will get back to the hon. Gentleman with regard to the detail of how the process would work on the Floor of the House, but from my point of view it is clear that the elected House will ultimately determine whether and how the order goes forward".—[Official Report, Commons Standing Committee D, 12/7/05; col. 216.]

So will the Minister tell the Committee whether Mr Burnham was wrong in what he told another place? If so, will he apologise to them for unintentionally misleading them during a crucial debate? Either this is an order-making process and the Commons cannot force it through without the Lords, as there is no Parliament Act provision, or the Government are planning on the basis that before we reach the date of compulsion they will have legislated to restrict the powers of this House in respect of secondary legislation. If that were to be the context in which the super-affirmative orders were to be considered, then it would be even more of an inadequate sop than it appears at first sight.

Will the Government today give a clear commitment that this House will have every right to reject any secondary legislation that will mark the transition from the initial period of compulsion under Clause 5 to the final period of compulsion under Clause 6 if they retain stewardship of the government of the country? In any case, the Committee's discussion of the Bill has shown that the information about it is so lacking, the costings so obscure, the details as yet so far from being determined, that even if the scheme were to go ahead on a purely voluntary basis, it is inevitable that substantial change will be needed. We would argue that that could properly be done only by the mechanism of primary legislation. Parliament is certainly owed nothing less than that. I beg to move.

Photo of Lord Geddes Lord Geddes Conservative 9:15 pm, 12th December 2005

It may be for the assistance of the Committee if I reiterate that the amendment presently under consideration is Amendment No. 117A in the name of the noble Lord, Lord Peyton of Yeovil. The Committee will come to Amendment No. 118 in the name of the noble Baroness, Lady Anelay, shortly.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I was speaking to Amendment No. 118 in the rest of that group. I hope that that agrees with what the Chairman understood.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

While I agree with everything that my noble friend Lady Anelay has just said about this aspect of what she accurately described as a skeleton Bill, I rise to support Amendment No. 117A, which relates to Clause 6(1). This provision would have done credit to the informed and perceptive imagination of George Orwell. Subsection (1) states:

"The Secretary of State may by order impose an obligation on individuals of a description specified in the order to be entered in the Register".

Lo and behold, it then goes on to say:

"An order . . . may impose an obligation on individuals required to be entered in the Register to apply" to be so entered. Not only can the Secretary of State therefore require someone to be entered in the register who does not want to be—indeed, who wants not to be—the measure goes on, with sublime artistry, to oblige him to apply to be entered. Not even Big Brother in Nineteen Eighty-Four or the pigs thought of imposing that on poor decent old Boxer, who gradually came to find himself subjected to a status intolerably subordinate to them. At least Orwell did not fashion a scheme obliging him to ask for just that. Therefore, this amendment ought to be supported because without subsection (1), subsection (2), which is my real target, would fall.

Photo of Lord Crickhowell Lord Crickhowell Conservative

After that devastating intervention, no doubt this clause will be called the "George Orwell clause", and rightly so to remind those outside the House what this Bill is all about. In an earlier debate at about this stage in the evening, a noble Lord on the other side of the Chamber reminded us of a very unfortunate piece of Conservative legislation—the poll tax. I suggested that this Bill might be the Government's poll tax Bill. Poll tax Bill or Orwell Bill, we are beginning to get to the real nasties in this Bill.

It is unfortunate that so important an amendment should be moved at this stage of the evening in a thinly attended Committee, but no doubt we shall find a better opportunity to return to a matter of great importance. I agree with my noble friend who moved the amendment that this is a key amendment in our proceedings. Surely it cannot be right to make this great step forward except by primary legislation.

The Bill has been interestingly divided into two parts. The first part is the "we all want it because it is all going to be so helpful and convenient" part. Apparently, the great British public may not realise what they are demanding, but if they fully understood it, they would be standing on the street corners saying, "We want this Bill. This is for our convenience. The Government are putting it forward with no other purpose than to be helpful to all of us". But then we suddenly jump to another part of the Bill—to "the Government want it because it suits them" part. We heard a classic argument just before we broke for dinner on those lines. The time and place amendment was justified by the Minister on the ground that the Government considered that it was essential to their purpose to have a smooth-running Bill. Some of us consider that it is the job of this House to attach equal weight to guaranteeing that the citizen has a Bill that suits him and guarantees his freedoms and conveniences. So when we start to move from the "let's all have it and actually, you know, this is a lovely popular piece of legislation" stage to the point when it becomes compulsory, Parliament ought to be allowed to stop and consider very carefully.

Of course one of the justifications that the Government have advanced for the way in which they are proceeding—in other words for dividing this Bill into two parts—is: "We want to see how it develops. We want to make sure that it all works in a way that is helpful, suitable and not too expensive. We want to make sure that the biometric systems work in the way that we forecast they will work; that all the things that we say are going to go so smoothly really do go smoothly, before we go on to this much more difficult phase, in which we are going to have to persuade the British electorate that it really was a rather good idea to impose compulsion on them".

Already, we know from the debates that have taken place in this House that there have been a good many misunderstandings. On Second Reading, we had a speech from the noble Lord who is the former commissioner of the police. He defended the legislation, but in terms that made sense only if it was compulsory to carry the identity card and if you not only carried it but you had to produce it to a policeman whenever he asked for it. Otherwise, the whole defence that the noble Lord advanced made no sense at all. We are moving to a stage where something quite different is being proposed; not something helpful where we might find it useful to be able to prove who we are, but to a stage in which the Government will find it very useful because they will have much more effective control over citizens and the lives of citizens.

I am sorry to say that I am old enough to remember the war and the aftermath of the war. I remember the rejoicing and the delight when the old identity card was abolished by a Conservative government. The abolition was welcomed because people had discovered that carrying an identity card was something that they did not really like doing, although they understood perfectly well when the nation was threatened in a world war that it was necessary that they should do it. Now I suppose we will be told that we are threatened by terrorism and by crime on a scale and of a form that makes a similar sacrifice necessary, although no evidence has been produced that that is the case. There is no evidence that the card will really make a practical difference. Before we take such a step, the Government have got to justify to the nation that that is the circumstance of the time when we go to compulsion; that there really is such a threat to our society that a measure of this kind is necessary and essential. They clearly are not making that case now.

If it was necessary and essential, as they say it is, they would be introducing it now and at this moment, because the threat is supposed to be with us now and at this moment. If you think you have got a measure that will prevent us being decimated by international terrorism, you do not say, "We may introduce it in two, three, four or five years' time". You say, "We will introduce it now". The Government clearly do not believe that it is necessary or they would introduce it now. Therefore, before they take this step at some unknown date in the future, they must come before Parliament and justify it to Parliament not in a constrained way, not when Parliament is in a constrained condition debating an order-making process—even if that order-making process has been extended and enlarged—but in a process under which we examine, probe and amend all serious legislation, as we are seeking to do tonight.

Therefore, I strongly support my noble friend's amendment. It is a key amendment in our proceedings and if, as seems likely at this stage of the evening, we cannot press it to a conclusion, I hope that she will choose a suitable moment later in our proceedings to ask the House to look at this issue and give it the importance that it deserves.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs 9:30 pm, 12th December 2005

I wholeheartedly support the amendment, which the noble Baroness, Lady Anelay, moved with great lucidity. I must confess that we on these Benches are rather keeping our powder dry for Report. We have all had our go at the intended compulsion of the Bill. Although I am not looking forward to the Report stage, that will be the showdown and, in a sense, what we are saying now is preparatory to that. However, I want to make a few points.

First, I reiterate what the noble Baroness, Lady Anelay, said—it cannot be said too often. Without the Government's estimate of the costs of establishment and cross-departmental integration of this mammoth scheme, we are setting to sea in an unseaworthy vessel. The aims, by reference to which the Bill is brought forward, cannot be tested against alternatives without knowledge of the broad costs. At this stage I do not propose to enlarge on that but it needs to be emphasised.

I was amused by the reference made by the noble and learned Lord, Lord Mayhew of Twysden, to the piglets and George Orwell. Incidentally, let us not forget that his real surname was Blair. But if the noble and learned Lord really wants to get excited and angry, he should take Clause 2(4) to bed with him. It will keep him awake into the small hours because it makes anything in Clause 6 look very innocent. Under Clause 2(4) you can be forced on to the register not merely if you have not applied to be registered but even if you are not entitled to be registered. We need to consider that whole dimension of the Bill much more on Report. Again, I utterly acquit the noble Baroness, Lady Scotland, and the noble Lord, Lord Bassam of Brighton, of any part in that strange conundrum.

Secondly, I want to read what the Joint Committee on Human Rights said on 17 October about compulsory registration:

"We retain the view of the previous committee that phased-in compulsory registration risks disproportionate and discriminatory interference with Article 8 rights. In our view, the imposition of compulsory registration on particular groups under clause 6 should be subject to the condition that such compulsory registration is necessary for one of the statutory purposes".

I turn to the issue of the super-affirmative procedure, for which we must give the Government some credit. So far as I am aware, it is a novelty, and if it were in another Bill I should be as pleased as punch because it gives real powers to this place. But one needs to bear in mind that statutory instruments are never brought before this House until dinner time—that is notoriously the case. It may sound feeble but the practicality of this place is sometimes more important than the theory. I have considerable anxiety about the effectiveness of even the super-affirmative procedure, given the traditions of dealing with statutory instruments. Of course, against that, and rather against my own argument, statutory instruments are not subject to the Parliament Acts. I do not know whether the Government have contemplated that but, if we were to mangle their super-affirmative instrument, they could huff and puff down the other end as much as they liked but they could not use the Parliament Acts. They could only whinge on about the mandate and the Salisbury convention, but I do not think that that applies to statutory instruments. If it does, it should not. We on these Benches did not sign up to it. All in all, we have had a good preview of a much rougher match to come at the next stage.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Why are Clauses 6 and 7 in the Bill? A sensible and, dare I say, honest government who were introducing a national identity scheme would want to see how it progressed. They would introduce it, perhaps on a voluntary basis, and after a period, if it proved to be successful and popular, they might consider that it should become compulsory. My noble friend talked about a mandate; let us move on a few years. After the nightmare that the Bill will cause in the next two or three years as people are required to put their names on the register if they want a passport, a driving licence or something of that nature, and the costs and the difficulties become apparent, can you imagine the Labour Party going into the next election saying, "We want a mandate for the national identity register to become compulsory"?

As the noble Lord, Lord Crickhowell, pointed out, it would be its "poll tax". It would not conceivably have an opportunity of winning an election if it was campaigning at the next election to bring in a compulsory register. So what do the Government do? They put it in the Bill by some trick mechanism that has been invented to try to satisfy your Lordships that we will have some power to prevent it.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

I thank the noble Lord for giving way as it is getting rather late, but if he wants to make party political points, will the alliance between the Liberal Democrats and the Conservatives on these matters last until the next general election?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

That is interesting speculation. I will hire a committee room tomorrow and invite the noble Lord to discuss that issue with me.

This will not be in the next Labour Party election manifesto. The Government are trying in this completely novel way to introduce compulsory registration at this time. There are all sorts of problems with it. Clause 6(1) states:

"The Secretary of State may by order impose an obligation on individuals of a description specified in the order".

What does that mean? Does it mean that it will be in steps: that, first, foreign nationals who are here for longer than three months, for example, will have to take out identity cards? Will the next step be that Muslims have to do so, or some other bloc of people within the community? The Bill does not suggest that the order will apply to everyone—it could be for a class of people. There are dangers in that.

The clause then states:

"An individual who . . . contravenes an obligation imposed on him . . . shall be liable to a civil penalty not exceeding £2,500".

There is no question of intention or even knowledge on the part of that individual. If he falls within that class and fails to register, he will be liable to a civil penalty. As the Joint Committee on Human Rights pointed out, effectively a criminal sanction is being imposed. The use of the word "civil" should not deceive anyone at all.

Orwellian these clauses most certainly are, and they are an attempt to obtain powers now that the Government would not dare ask for at the next election.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Orwellian they are not. Perhaps we may look at some of the issues that have been raised. I agree with the noble Lord, Lord Phillips of Sudbury, that the noble Baroness, Lady Anelay, moved her amendments with great lucidity. I shall attempt to respond and explain why I fundamentally disagree with her. I should also deal with some of the comments made by other noble Lords.

I say to the noble Lord, Lord Crickhowell, that ID cards will not be and cannot ever be the Labour Party's poll tax. The noble Lord may have forgotten that no one wanted the poll tax and people very much want ID cards. They are necessary and they are essential. We are being utterly practical in the way in which we put them forward. Although the noble Lord, Lord Crickhowell, gave a caricature, I confess I found myself thinking, "By Jove, he's got it, he's really got it". The things that the noble Lord said about why we are doing this are actually correct.

The principle of compulsion is clear: it has never been hidden; it is something on which we rely; and it is happening in this Bill. At Second Reading on 31 October, I made that absolutely clear when I said that,

"the identity card scheme to be introduced is designed to become compulsory. We therefore need to have the debate on the principle of compulsion now".—[Hansard, 31/10/05; col. 16.]

That is why we are having it now. The amendment of the noble Lord, Lord Peyton, which leads this group, would quite simply remove the power to impose an obligation by secondary legislation on specified individuals to be entered in the register. I understand the reason why the noble Baroness moves it on his behalf and puts it in that way.

The Government's proposals, which command significant and consistent public support, are for a national identity card scheme which, in time, will become compulsory. That means that leaving aside any exceptional categories, it will be compulsory for every British citizen resident in the United Kingdom and all foreign nationals resident for more than three months to register, backed up by civil, financial penalties for failing to comply. That is what we are talking about—this is primary legislation—and that is why we are debating it now—not later, now.

This will clearly happen when the time is ripe. It will not happen until Parliament has had an opportunity to debate the matter, but the debate will be about the timing of compulsion and the precise categories of individuals to be included in the compulsion order—not the principle. We have an opportunity, through this piece of legislation, to decide on the principle. Therefore, now is the time for the debate on that principle. It would be wrong of the Government to try to dodge that issue by introducing a scheme now with a clear intention of it becoming compulsory but for the debate on compulsion to be put off until some point in the future. The public are entitled to know now that the Government are proposing an identity card scheme that will become compulsory. Compulsion to register makes common sense. If we are to have an identity card scheme that is universal and if we are to maximise the benefits that the identity card scheme will bring, ensuring that everyone who is legally resident here and who is economically active has an identity card will make the scheme fair to all.

Photo of Lord Crickhowell Lord Crickhowell Conservative

If it is so essential to have the legislation now, why is the time not ripe? What makes the time ripe?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It is a matter of implementation. The noble Lord knows that the changes we have to bring in, not only to comply with the US provisions and the EU provisions, mean that we will have to move to the use of biometrics in our passports. That is happening now. Noble Lords know that the preparation for that is taking place and that next spring we shall start to register facial biometrics on new passports. We propose to extend that, in due course, using the better and more effective additional biometrics that we have discussed over the past few months. That is going to happen incrementally.

We must also implement it in a way that makes sense. During the past few months we have talked a lot about the benefits of the Passport Office. It is a proven agency, and it has done remarkably well in achieving a high standard. It has delivered on time and effectively in a way that has generated huge satisfaction among the public. We are introducing this in a sensible and planned way. That is why it is starting now but the implementation will take time.

There has been criticism of government agencies and others, during our administration and previous ones, that a scheme was not planned properly and the realities of the implementation were not taken into account. We are not doing that. We are acting in a practical and pragmatic way. That is why I say that the public are entitled to know now that the Government are proposing the ID card scheme and that it will be compulsory. Compulsion to register makes common sense if we are to have a universal scheme and to maximise the benefits that it will bring, ensuring that everyone who is legally entitled can take part. That is why it is important for us to lay all that out.

It will be far easier for us all to prove our identity. It will also make it more difficult for the criminal, the terrorist, the fraudster or anyone to use someone else's identity, or to create an entirely bogus identity, or to create multiple identities. At present, it is far too easy to create false identities and to use those to defraud banks or businesses or to carry out benefit or other frauds on the public services.

Before the move to compulsion can take place, the Government will want to be satisfied about a number of things. They will want to be satisfied that the roll-out of the initial phase of the identity card scheme has already delivered significant coverage of the population so that the impact of the compulsion order will only be for a relatively small number of people to register who have not yet obtained an identity card.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs 9:45 pm, 12th December 2005

I am grateful to the noble Baroness for giving way. If for whatever reason the roll-out proves a disappointment—there might be a combination of reasons—will the Government think again about making the scheme compulsory?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

As a result of our delaying the full implementation to super-affirmative procedure, it is always open for us to look again at those issues. That is the whole point. It will also give everyone an opportunity to have a vigorous debate. If, as we believe will be the case, things have gone well; if things have been sensibly handled and implementation will inure to the benefit of everyone; and if all the issues noble Lords and the Government raised have been answered, we will have a good answer to those who say that the scheme should not come into effect or should be delayed further. Therefore, it is inherent that that full implementation date would be put off if we have chosen the wrong date—if we are not ready by the time we seek to make it totally compulsory. There will continue—

Photo of Lord Northbrook Lord Northbrook Conservative

If the passports are to be adjusted to a suitable system, why cannot everyone trade in their passport for a new one? Would not that be more effective than the ID card?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I do not know whether the noble Lord was in his place when we were talking about how the scheme would be rolled out. Anyone who has a current passport, with 10 years or whatever left, will continue to hold it. Only if they have to renew the passport before the date when the scheme becomes compulsory will they have to do anything about it. If the passport expires before the date of compulsion, they will have a number of choices. They can either apply for a new passport and get an ID card at the same time; or not get a new passport; or wait until the rules for compulsion apply. It is not the case that anyone will have to hand in their passport before the scheme becomes compulsory.

There are issues that we have all spoken about, such as the fact that there continues to be clear public support for the identity card scheme. We want to see that maintained. In our debates, all sides of the House have been clear that no vulnerable groups should be disadvantaged. The noble Lord, Lord Phillips of Sudbury, has spoken about people who are poor and the noble Baroness has spoken about those who are blind or have another disability. We care about all those individuals and we will try to get that right.

The scheme has made a contribution to meeting its aims as set out in Clause 1. That will be important when it comes to compulsion, as will the technology supporting the identity card scheme working and being trusted. We will have to ensure that all those things are delivered.

As the noble Baroness, Lady Anelay, said, Clause 6 is an intrinsic part of the Bill. Compulsion is not an optional add-on to which a future government will return at some point to discuss the principles. Supporting the Bill means supporting a scheme that will eventually become compulsory. Just in case that needs repeating, by compulsory we mean that registration will be compulsory. Despite the claims of some noble Lords, a requirement to carry a card at all times has never been part of the intention of the Government. Clause 15(3) specifically precludes regulations requiring an individual to carry a card at all times. There are no powers in the Bill for the police to require people to produce proof of their identity, or for criminal sanctions on those who fail to meet their obligation to register. The eventual requirement of—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Can the Minister explain how identity cards will help to catch terrorists if carrying them is not compulsory? Surely, according to the Government, the whole purpose of having them is to deal with terrorism.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I have never said that it would be necessary to carry identity cards. That has consistently been disavowed. We have said very clearly that it is important to be able to identify individuals. Noble Lords will remember our debates about the number of terrorists and others who have multiple identities. The ability to identify individuals as the same individual passing from country to country is very important. I am sure that the noble Lord will remember the extracts from the al-Qaeda manual that said that one of the principal tasks was to acquire multiple identities. Identity cards will greatly assist us. Noble Lords will remember the information we had from the Spaniards about their ability to identify people as a result of having identity cards. We have debated all these things again and again, in Questions and debates, at Second Reading and elsewhere. Of course, this is Committee, not another Second Reading debate.

The eventual requirement for everyone who is economically active to register underpins the whole scheme. The Government have always been clear that the scheme will eventually become compulsory, and our qualitative ID cards proposition research, Public Response to Proposed Customer Propositions, a copy of which is in the Library, provides a good understanding of the public's view on compulsion. The research concluded that there is a strong belief that for the scheme to work effectively it will have to be compulsory to hold an identity card and to use it in some circumstances. If we removed Clause 6, the identity card scheme could not become compulsory, as the Secretary of State would not have the power to require people to register. The noble Baroness was right when she said that this clause is fundamental. If we removed it, she would put a coach and four through the Bill. The scheme will be made compulsory by orders made under Clause 6, which would be subject to the super-affirmative procedure. Parliament will therefore scrutinise and vote on any orders made.

The noble Baroness asked about what my honourable friend Mr Burnham said in the other place on the scheme. I always hesitate to contradict what a colleague has said, but my honourable friend was probably referring to the final way in which we would have to implement this if the super-affirmative procedure was not adopted. I think he meant that if both Houses did not agree, ultimately it would be up to the other place to determine the matter by primary legislation. But the process of the super-affirmative order set out in Clause 7 is clear and is understood by the noble Lord, Lord Phillips: each House can alter or add to the proposal and only if both Houses approve it can an order giving effect to it be laid. That order is then subject to the ordinary affirmative resolution procedure. The procedure is not yet usual, but it is precedented; for example, the Select Committee on Delegated Powers and Regulatory Reform recognised that it is,

"the most stringent available secondary legislation mechanism".

The order cannot be forced through by the Parliament Acts—to answer the question raised about that. This House can modify the proposal, although I hope it would not come to that. Ultimately this House could veto any order under Clause 7. So it is amazingly strong in terms of procedure.

Even with the powers to link ID cards to existing documents through designation—for example, passports under Clause 4—there will still be some people who may not hold a passport and so will not obtain an ID card when their passport is renewed. Without this clause, further primary legislation would be required to take the final step in making the scheme universal.

This Parliament should decide whether we are to introduce a compulsory identity cards scheme in the United Kingdom. It would be quite wrong to put off that decision until some point in the future. I absolutely understand that noble Lords will want to return to that point on Report. It is only right that I should make clear the Government's stance on that.

Amendment No. 118, which was moved by the noble Baroness, Lady Anelay, would make it impossible to require everyone entitled to be registered to do so under Clause 6. The amendment is not needed, as Clause 6 already provides that compulsory registration can be phased in to particular groups of individuals. Indeed, as we have always made clear, this would allow us to exclude completely particular categories of persons from a requirement to register. Thus—to give an example—the very elderly, persons in residential care or other special cases could be excluded. Where we should draw the line will need to be determined when the compulsion order is discussed, but it would be wrong to tie our hands unnecessarily by making it impossible to require everyone entitled to register to do so. Indeed, I remember well the point made about that earlier by the noble Lord, Lord Stoddart, when it was suggested that some may be excluded.

Clause 7 sets out the super-affirmative procedure to bring in the compulsory registration order, with which I have already dealt.

Perhaps I may answer the noble Baroness about the Delegated Powers and Regulatory Reform Committee and its report. I agree with her and the quotation she gave regarding how it describes the super-affirmative procedure. It said that it was appropriate and,

"the most stringent available secondary legislation mechanism".

We believe, for the reasons I have given, that it was right to so describe it and to say that primary legislation was needed—the primary vehicle is the Bill we are now discussing.

Amendment No. 133 would add a time delay of five years before the order-making power to bring in compulsion could be used. The Government rightly have not set a definite timetable for the move to compulsion. That would be wrong, as we need to ensure that the initial phase of the scheme is implemented successfully.

Amendments Nos. 135 and 136 would make minor drafting changes to Clause 7 by making the report on compulsion subject to "amendment" rather than "modification" and for it to be approved by "each" rather than "both" Houses of Parliament. We do not see that these changes would have any effect, and we believe that we should be guided by parliamentary draftsmen on the most appropriate form of words. As I understand it, "amendment" is the appropriate form of words for changes in primary legislation. "Modification" is defined in Clause 43(1) as including "omission, addition or alteration", so there can be absolutely no doubt that Clause 7 allows this House and the other place to make any changes they wish to the proposal for compulsion set out in the report.

For the reasons that I have given, I invite the noble Baroness not to press the amendments. Clauses 6 and 7 must stand part of the Bill. I understand that the noble Baroness may want to bring back the amendments but, after my full explanation, I may have persuaded her that the clauses make eminently good sense and that they should remain in the Bill. Somehow, I feel that that is optimism that will prove to be lacking in foundation.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers) 12:00 am, 12th December 2005

I never like to disappoint the noble Baroness, and I shall not disappoint her tonight. I am of course grateful for the full response that she gave to the Committee, despite the fact that much of her thesis centred on arguments about not being forced to carry identity cards, when that had not even been raised in the debate. I have never raised the spectre of being forced to carry identity cards when I have moved amendments. That is not part of my argument.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

That argument was raised by the noble Lord, Lord Thomas of Gresford, among others and, when I was replying, I had to reply to the whole Committee, not just to the noble Baroness.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I certainly understand that.

I will be as brief as I can, because I took time opening the debate when I made it clear that it was a vital amendment, but one on which I would have to reflect properly on the Minister's answer. That is because this is the first occasion on which the Government have had the opportunity to put before the House their response to three new reports that were not considered in another place: those of the Joint Committee on Human Rights, the Select Committee on the Constitution, and the Delegated Powers and Regulatory Reform Committee. It would have been wrong both in principle and practice had I sought to resolve the matter this evening either way.

The noble Baroness prays in aid the report of the Delegated Powers Committee. I remind her that, although I agree with much of its report, I disagree with it when it states that the Bill provides for a compulsory scheme preceded by a voluntary stage. I argue that it is not a voluntary stage and therefore come to a slightly different conclusion, not in the Government's favour, from that of the Delegated Powers and Regulatory Reform Committee. The noble Baroness says that my amendments would deny the Government the opportunity to go ahead with a compulsory scheme. I am certainly not trying to do that; I am trying to give them the opportunity to do so by primary legislation after full and proper consideration.

I am very grateful to the noble Baroness for her response on what Mr Burnham said in another place about the operation of the super-affirmative SI. She was as clear as she could have been in ensuring that this House would be able, under the order-making procedure, to have a full and final say if we diverged from another place. That was a most helpful advance.

We must all look carefully at the matter and will probably remain of a differing view about whether primary legislation is required. However, I must end by reminding the noble Baroness gently that, although she continually refers to the clear, considerable and consistent public support for identity cards, public support can waver when the public find out what is really involved. I remind her that ICM research carried out between 18 and 20 November this year discovered that the drop in support for ID cards was to 50 per cent and that opposition to the proposal had risen to 48 per cent. So public opinion is a changing thing. We will have to see how that opinion changes reflecting on the debates in this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 118 to 120 not moved.]

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

The names of the noble Baronesses, Lady Anelay and Lady Seccombe, have been added to the amendments. There are six in the group: Amendments Nos. 121, 122, 125, 129, 132 and 157. They concern the nature of the penalties which may be imposed under the Bill on those who fail to comply with the requirements of the Home Secretary vis-à-vis identity cards and applications for them. It is fair to say that there has been a tendency in modern times for this Parliament to try to dress up as a civil offence that which traditionally would be treated as a criminal offence. The reason, plainly, is that the demands placed on the prosecutor of a civil offence are much less than for a criminal one. The standard of proof is a balance of probabilities rather than beyond reasonable doubt. There does not need to be intent in order to establish the criminality or the offence.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My noble friend talks of the importance of hearsay evidence. But here we have another example of that tendency. It is incumbent on us to look extremely carefully and cautiously when we see such a tendency exemplified in a Bill. I think—I shall be interested to hear what other Members of the Committee think—that this is classically a case where we should err on the side of the greater protection of the citizen; that is, to make these offences criminal in order that they attract the greater protections which that brings.

It is interesting that under the European Convention on Human Rights, when applying Article 6, the courts will look at the substance of the offences in the legislation and not be dazzled by the form, let alone the nomenclature. They will look at whether the obligation attracting penalties is general rather than a particular or a group obligation—in this case, the answer to that is manifestly yes. The noble Baroness has been very frank to say that this will be a universal scheme affecting the whole population, which would speak in favour of arrangements being criminal rather than civil. The courts will look at the nature of the offence, which is not as clear. But I still maintain that on balance these offences look to me, and will certainly feel to those affected by them, to be more criminal than civil. They will look at the severity of the penalties attaching to the breaches of the law—penalties of £1,000 to £2,500 per offence. There is no gradation, which would give a lower potential for a first offence.

The penalties imposed by some of the lowlier road traffic offences, which are certainly criminal offences, look a great deal more draconian. The European Court will also look at whether the penalty or fine is intended to have a deterrent effect. Patently, that is the case, which is one of the arguments advanced by the Government for bringing the provisions forward. It strikes me that on an Article 6 test, the offences here and the penalties attaching to them bear more the characteristics of criminal than civil offences. In its most recent report, the Joint Committee on Human Rights said that Article 6 compliance can best be assured if,

"the procedures for imposition of penalties under the Bill aim to comply with Article 6 criminal due process guarantees".

That is the brief exposition on why this group of amendments introduces mens rea or intent into the offences concerned.

I invite Members of the Committee to look at a couple of cases that one might have to deal with. Let us take a failure under Clause 5(5)(a) to attend an interview. As I said earlier today, under the Bill an automatic penalty is imposed by the Secretary of State. There is no requirement to ask the defaulter—as he or she is referred to—whether they were the person concerned and whether they had a reason for failing to attend the interview. That may be what is intended extra-legally, so to speak, in terms of the code, but nothing in the Bill entitles the person against whom the penalty is imposed to have their say before its imposition. That seems a quite grotesque state of affairs.

If our car breaks down, we suddenly become ill or for any of a considerable number of reasons we fail to attend one of these interviews, we will be the subject of an automatic penalty decided by the Secretary of State without reference to us. We then have a right of appeal to the county court. Indeed, to be fair, the Bill states that at that point we can write to the Secretary of State with reasons—"I had a heart attack" or "My car blew up". The Secretary of State may then reconsider. He can wipe out the penalty, reduce it or leave it as it is. That leaves the defaulter with the option to appeal to the county court.

All that strikes me as profoundly unsatisfactory. I venture to suggest that if the Government get this measure through in what I would call "compulsory form", it will serve no purpose and do no good for the way the scheme is perceived by the public at large. It denies what I would call normal due process for the penalties imposed under the Bill. The first and most essential element in that is that there should be a degree of intent. If someone fails to attend an interview, they should not have an excuse which makes it clear that it was not a wilful failure on their part. The absence of intent should deprive the Secretary of State of the right to impose a penalty.

Finally, I turn to another aspect of the compulsory requirements under Clause 5: to allow oneself to be photographed. There are people—not many of them—who have a phobia about being photographed. I am not going to be soft-soaped or impressed by stuff about what may happen behind these provisions out of the goodness of the heart of the Government, or the noble Baroness saying that nothing would be further from her thoughts than to be nasty to someone with a phobia. I am not remotely concerned with that. Under the Bill, where penalties of this nature are being imposed, there should be normal, conventional and proper protections for the citizenry of this country. That means a degree of intent, and that is why this group of amendments has been tabled. I beg to move.

Photo of Baroness Seccombe Baroness Seccombe Deputy Chief Whip, Whips, Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Assist the Home Affairs Team) 10:15 pm, 12th December 2005

These amendments raise the issue of the level of fault necessary to fall foul of the civil penalty regime. By ensuring that individuals will be liable only to a civil penalty if they intentionally contravene an order to register themselves, the amendments will protect those who, through ignorance, inability or pure mistake, do not meet the deadlines or details of the order. The order may not have been served at the correct address or the individual may never receive the order due to illness, change of address or for any number of reasons. To impose a form of strict liability on the individual for breaches of such an order, no matter how blameless the failure to comply, is neither fair nor reasonable. It does not allow for the circumstances of the individual to be taken into account.

No doubt the Minister will seek to allay the concerns raised here by saying that by virtue of Clause 35 there is a right of appeal to the county court. However, although an important safeguard, that should not allow Clause 6 to pass unnoticed. As it stands it is draconian in the extreme. It implements a system of arbitrary fines and penalties, the impact of which would invariably fall most heavily on the section of the population that is most likely not to be able to meet the requirements of an order and who could least afford to pay—the elderly and students being the most obvious examples.

The appeals process proposed in Clause 35 is not exactly comfort to the pensioner who has to battle against the Home Secretary's decision in the county court. A county court summons could be a very frightening experience for some people and employing lawyers to represent one in the county court is an expensive option and way beyond the means of some people, particularly the elderly and the most vulnerable. The court system is already overburdened and all the scheme will achieve is to overburden it more. The parking fine system and the speed camera system were referred to in another place as deeply unpopular schemes. If this scheme is allowed to go ahead it will likewise cause widespread resentment and unnecessary and costly hearings in county courts across the country.

The size of the potential fine, or whatever one calls it—£2,500—is tantamount to a criminal penalty in practice if not in theory. That is all the more reason to introduce a fault requirement if a penalty is to be imposed. Setting that threshold at the level of intention is reasonable and proportionate: it will prevent the deliberate disregarding of any order and therefore is all that is necessary to meet the aims of Clause 6 and the civil penalty regime. Any more than that and the Bill risks introducing a scheme that will be extremely unfair.

As my honourable friend Mr Mercer said in Committee in another place:

"We are fooling ourselves if we think that we are setting up a nice friendly system. We are talking about coercion driven by money and the extraction of money from the individual in which the individual has to establish, albeit on the civil standard, that he is free of the obligation imposed on him by the Secretary of State".—[Official Report, Commons Standing Committee D, 12/7/05; col. 203.]

By inserting the requirement that an order must have been contravened intentionally, the amendment would shift the burden to the Secretary of State to prove that this was the case, albeit on the civil standard of proof.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

This is a fairly simple point. The penalty is imposed by the Crown. I regard it—and it is generally regarded—as a fundamental principle that a penalty imposed by the Crown should not be incurred unless it is incurred intentionally. Of course there are rare examples of strict liability but the context of this legislation does not conceivably warrant that.

I think I know—at least in part—what the noble Baroness will say by way of reply. She will refer us to "Objection to penalty" in Clause 34, which states:

"A person to whom a notice under section 33 has been given may give notice to the Secretary of State that he objects to the penalty on one or more of the following grounds".

The second ground is:

"that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable".

It would be unreasonable if he did not intend to meet the conditions upon which this legislation imposes the liability. If the Government are prepared to accept that, why on earth are they not prepared to accept these amendments which require intention to be proved before liability for what is a criminal offence is incurred? It is really an open and shut case. I very much hope that the Minister, with her customary fairness, will see this. I do not expect a concession tonight but I very much hope that she will take it away and come back with something next time.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I support the arguments put forward by my noble friend Lady Seccombe, my noble and learned friend Lord Mayhew and the noble Lord, Lord Phillips of Sudbury. It is pretty clear that a fine of £2,500 would be held to be a criminal penalty, or the equivalent of a criminal penalty, under Article 6. I invite the Minister to look at International Roth GmbH et al v Home Office. Lorry drivers could automatically be fined £2,000 or multiples of £2,000 by the Customs and Excise if there were illegal immigrants in their lorries. That case, as the noble Baroness will remember, was struck down by the courts under Article 6, among other things, a result that was upheld by the Court of Appeal. It was pretty similar—the fine was £2,000 and there could be 10 or 15 illegal immigrants in a lorry, a fact that was often not known to the driver. It was a heavy penalty. The sum of £2,500 could be a very heavy penalty to an individual.

I support the introduction of the word "intentional" and invite the Minister, when she has time, to redraw the provisions so that they fulfil the criminal standard and put the burden of proof on to the prosecution.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I entirely support everything that has been said, and I will not repeat it. One has to think of the circumstances in which this civil penalty will arise. Clause 37 deals with fees. The Secretary of State will impose fees,

"of such amounts as he thinks fit" for not just an entry upon the register but a modification of an entry, for the issue of ID cards, for applications for the provision of information contained in entries in the register, and so on. How does he calculate the level of the fees? By having regard to the expenses that will have been incurred in respect of that application,

"expenses that will be or have been incurred by him in respect of such other things mentioned in the subsection as he thinks fit" and,

"other expenses that will be or have been incurred by him in connection with any provision made by or under this Act".

In other words, the fees will be related to the cost of the whole scheme. That the Government have estimated only £30 for making an application to go on the register indicates that very little thought has so far been given to the implications of Clause 37. We have seen other estimates, varying from £90 to the hundreds, as the likely fees.

Not everybody can pay those fees. Large numbers of people who will be caught by these provisions, particularly when they become compulsory, will be students, elderly people or retired people, for whom fees of that nature will be excessive. Yet if they fail to register because they do not have the money or because they do not, for one reason or another, realise that they have to register, then, under these provisions, they become liable to what is effectively a criminal offence. You can imagine the effect upon elderly people who have led blameless lives who suddenly discover that for something they know little about or which they cannot afford they are effectively criminalised.

Intention is an essential ingredient of any offence that will be brought under this legislation. I think that the reason the word "intention" is not already contained in the provisions is that these penalties are produced not by a human being but by a machine. That is the problem. It is the same with parking regulations and the congestion charge. No human mind is ever put to the circumstances in which there is a failure to comply with statutory provisions. Seeing that there will be 60 million people to be registered, it will be done by machine. Then it is left to the individual to make such representations as he can to the county court at a later stage.

I respectfully suggest that that is entirely the wrong way round. Where there is a criminal offence, strict liability ought not to be imposed and "intentionally" as suggested by the amendments is essential.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

I agree with everything that has been said. The real person who will suffer from this is the person with a large mortgage and little spare cash. When you are whacked with a fine like this you will have a major problem because it costs money to appeal in court. The likelihood is that the first letter will be whacked down by the Home Office because it will have seen too many sob stories. It will just say, "Terribly sorry; you have to pay up". You then have to take the matter to court. How will you afford a lawyer? If you have a nice house you will not get legal aid, so where will the money come from? It is a delicate balancing act as to whether you can afford to take the case to court. Most people end up being frightened, particularly if they are trying to run a business of their own or something like that. They will not have the time to spend on doing this.

I have seen something like this happen with the congestion charge. If the scheme is outsourced to a private company, which it probably will be, it is even more likely to be abused because revenue will be dependent upon the amount of money raised. The company will have an interest in ensuring that the maximum is got back from it. I will not bore the Committee tonight with the details relating to the congestion charge of sending things to one address, lifting a car from another address and then not notifying you so even the police do not know that it is in the pound. There are horror stories out there about the way that these companies behave or the bureaucracy behaves, so it is essential to have this word "intentional" included and change the burden of proof back to the way that we have always had in Britain in our common law society where the burden of proof is on the prosecutor; the state.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I confess to being a little surprised by the thrust of some of the proposals. In effect, the noble Lord, Lord Phillips, is saying, "Don't make this a civil penalty; make it a criminal penalty". By virtue of the way in which he puts it, I take it that he would prefer non-compliance to be dealt with by way of a criminal penalty. I want to be absolutely clear that we do not wish to criminalise people who are found to be non-compliant. That is absolutely not our intent.

The penalties are not automatic, as Committee Members know. The Secretary of State has an initial discretion and there is a right of objection and appeal, as the noble and learned Lord, Lord Mayhew, rightly highlighted. I commend the draft code that we have put forward for the Committee's attention because it sets out the procedure.

The reason that the penalties are civil and the appeal route is through the civil court is that the Government are not seeking to criminalise those who contravene requirements in the Act. In many cases, people will respond to penalty notices by complying with the relevant requirements. In those circumstances, it will be open to the Secretary of State to waive the penalty and that would be the end of the matter. The primary purpose of the penalties is to deter people from contravening the requirements in the Act, not to criminalise them. The main benefits of the civil as opposed to criminal penalties are that the civil penalties are enforced through the civil not the criminal courts. The civil penalty does not result in a criminal conviction or a criminal record—something that greatly troubles a number of people. Enforcement of the penalty is at the Secretary of State's own discretion. He would have to issue a claim in the county court. If the person belatedly complied with the relevant requirement, it would be open to the Secretary of State to waive the penalty. Non-payment of the penalty could not result in the person going to prison—imprisonment for debt was abolished by the Debtors Act 1869. There are certain exceptions to that principle, but a civil penalty under the Identity Cards Bill would not fall within any of those exceptions.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

Does the Minister dispute that this penalty is a punishment?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 10:30 pm, 12th December 2005

If the noble and learned Lord is asking whether it could be described as the noble Lord, Lord Phillips, says, as bringing to bear Article 6, I can see that there is an argument for that. But even if there were, the scheme that we are now proposing would deal with that; with legal aid and the procedures that we have set in place, there would be a fair trial and an opportunity to be represented. All those things will be complied with. But let me make it absolutely clear—

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am not going to give way until I have finished answering the noble and learned Lord, Lord Mayhew, because that is courteous to him.

We do not wish to criminalise people, and we do not believe that that would be the purpose of doing this. The procedure that we have set out will enable us to deal with it as a civil matter in a way that makes sense. I shall give way in a moment, but I want to deal with the point made by the noble and learned Lord, Lord Lyell, on the carriers' case, and assure him that his understanding is not quite as he has said it. The procedures that we have included as regards civil penalties in this Bill take into account the Roth case and would therefore be fully compliant.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I know that I do not have to say what I am about to say, and that she appreciates it, but I say it for the record. There is an enormous distinction between procedure of due process that has in it a presumption of innocence and which requires the prosecution to prove its case—that is, a criminal charge—and the system that the Minister proposes, whereby you are absolutely liable. Intention does not come into it under this scheme; you are liable for a penalty, and you cannot try to excuse yourself before a court. There is all the difference in the world between the civil and criminal approach.

As the noble and learned Lord said, when penalties are as high as £2,500 or £1,500, it bears no relation at all to any amount by which the state suffers by reason of a person failing to fill in a form. That has to be a punishment for failing to fill in a form and send it off. It is not a civil penalty that has any connection at all with any loss to the state.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It is a penalty. Both the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Thomas of Gresford, know full well that in relation to setting a penalty or fee or—if this were to be a criminal offence—the maximum fine, the maximum fine is not necessarily the fine that will be imposed. You could have a fine of anything from a penny to £2,500, which is the maximum; all that setting the maximum does is to say that you cannot have a fine—or in this case a penalty—that exceeds that amount. That is the first point.

Secondly—and I say this so that noble Lords absolutely understand it—the Government do not wish people to be criminalised. Most ordinary, decent people take a criminal conviction very seriously indeed. If you were to ask them whether they would be more content to have a criminal conviction or a civil penalty, I very much doubt that your Lordships would find many of them putting their hands up and wanting to be made criminals as a result of doing this. We need to take that very seriously indeed, because members of the public will take it very seriously.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

What the Minister describes relates to the means by which the punishment can be enforced; it does not relate to the character of the penalty, which is a punishment—as she has virtually conceded. The punishment is criminal in character and, accordingly, ought not to be able to be imposed save on proof of intention. That is what we are on about—and I am afraid that I have not grasped that the Minister has herself grasped that.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Surely the public are readier to accept a punishment for a person who intentionally fails to carry out their obligation or breaches the terms of the legislation, rather than one for a person who has to pay a penalty even though they do not know anything about their liability to register, to send in particulars of change of address, or whatever else.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I know that the noble Lord, Lord Thomas of Gresford, has not had an opportunity to look at the draft code, but that is why we have made it available—so that Members of the Committee will understand how we intend to deal with that matter.

I assure noble Lords that every effort will be made to ensure that those affected by the requirement know exactly what is expected of them and to warn them that failure to comply may be penalised. The order made under Clause 6 will be very widely publicised. The process under Clause 7 is likely itself to give rise to extensive public discussion. Every effort will be made to contact those affected by an order to inform them of their requirement to register and there will be a clearly publicised timetable before any requirement to register comes into force. So a failure to comply will not necessarily lead to a penalty notice, as I said. However, the civil penalty regime is a different form. We have set out the draft so that noble Lords could have a better idea of how it will work and be able to comment on that.

At the stage at which a civil penalty notice is issued, the Secretary of State will not normally know what the state of mind of the person concerned is, only that he or she has not complied after efforts have been made to notify them and after there has not been a response. At that stage, fairness to the individual who did not in fact know of the requirement; or did know and intended to comply but did not do so for some good reason, is built into the statutory scheme at the objection and appeal stage. Clauses 34 and 35 provide that one of the grounds of objection and appeal is that imposition of a penalty is unreasonable in all the circumstances. As the noble Baroness, Lady Seccombe, made clear, she wants to ensure that people who are not deliberately trying to be difficult—they are not members of the awkward squad or trying to cause difficulties; they just have not known about it and it has not come to their attention—are not caught. I agree with her.

Our purpose in setting up the scheme is to try to ensure that those people are not disadvantaged. The fact that someone was unaware of a requirement will make it unreasonable that any penalty should be imposed. Clause 36 provides for a code of practice setting out the matters that the Secretary of State and the courts will take into account when considering civil penalties. The code of practice will be laid before Parliament before the first identity cards are issued at the end of 2008. So we have lots of time to look at the code. I just thought it was important that we had a draft so that Members of the Committee could have a look at it and consider whether it is the sort of thing that would make them feel easier.

I make it clear that that was the basis on which we have done it. We have said in the code:

"If there is genuine doubt as to whether the person concerned was aware of the requirement, any penalty imposed should normally be cancelled. This may be because they had no notice of the requirement or because they were not able to understand it due to language difficulties, illiteracy or lack of intellectual capacity".

So we have put those issues in the code for the very sensible reasons that the noble Baroness, Lady Seccombe, highlighted: because we do not want that to be an undue burden.

I can therefore assure noble Lords that where non-compliance appears to be unintentional or an individual has subsequently complied with the requirement, any penalty should normally be waived. That is what we want to happen. The draft code of practice goes on to say at paragraph 6.9:

"As the purpose of the penalty scheme is to encourage compliance rather than to punish, it will usually be appropriate to cancel the penalty if the individual has complied with the relevant requirement by the time the objection or appeal is considered. Mere lateness should not generally lead to a penalty unless it is both deliberate and prolonged or repeated".

I know that that is what the Committee is worried and concerned about, and the amendments are a good prompt for me to clarify why certain aspects of the scheme are being backed up by civil, not criminal penalties. The primary reason is that we do not consider that failure to register or failure to comply with related requirements should attract the full opprobrium of criminal law. We are not seeking to make criminals out of people who are not compliant; rather we are seeking to coax them into complying. The first stage of challenge to a civil penalty would be an objection to the Secretary of State. At that stage the courts would not be involved at all. There will also be a right to appeal to the county court or sheriff. The matter will at all times be kept out of the criminal courts and will not give rise to a criminal record. Should a person refuse to pay, the subsequent debt recovery proceedings would also be a matter for the civil courts. The methods by which a civil debt may be enforced do not include imprisonment. I believe that we have achieved the right balance in the Bill for the civil penalties.

I promised to deal with the point made by the noble and learned Lord, Lord Lyell. He made reference to the carriers situation. That is a clear example of where we have used a similar procedure before. Similar penalties were imposed in relation to a carriers' liabilities scheme in the Immigration and Asylum Act 1999. It is normal with civil penalties for the objection and appeal stage to come after the imposition. It is true that the courts in the Roth case were critical of one aspect of the carriers' liability scheme—the fact that there was no discretion for the Secretary of State as to the amount of the penalty, but the courts confirmed that a civil penalty scheme is lawful and is compliant with Article 6. The scheme in this Bill is based on the scheme as amended in the light of the Roth judgment. The current carriers' liability scheme has been ruled compliant by the courts with ECHR rights. I have made it clear that we will comply, even on a civil scheme, with Article 6. To finish with—

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I am most grateful to the noble Baroness for giving way. She makes a good point about a civil penalty as opposed to a criminal penalty. It is really a question of the procedural safeguards when you get to court. The burden of proof should be on the Crown or the equivalent—the Home Office—rather than on the citizen. The other rules that normally apply in the criminal court should apply. After all, that is the way that the European Court of Human Rights approaches Article 6 in this respect. It is not that it minds so much exactly what things are called; it is concerned with the substance of the protections. The amendments that are before us now focus on the substance of the protections and I hope that the noble Baroness will be sympathetic to that. They would do the Home Secretary no harm and they would seriously relieve citizens of potential injustice.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The noble and learned Lord knows that Article 6 does not require a particular standard of proof. As a matter of domestic law, the normal standard of proof in civil proceedings will be on the balance of probabilities. The noble and learned Lord also knows that, dependent on the nature of the assertion one has to prove, that burden becomes weightier. If the issue that one has to prove is small and light, the burden on the balance of probabilities is commensurate with that. If the issue at large is heavier and goes nearer to the criminal standard, or the importance of it, the difference between the balance of probabilities and the burden of proof can sometimes be very much the same. I know that the noble and learned Lord is only too familiar with that.

Where a penal sanction is involved, the courts may take the view—as in relation to anti-social behaviour orders—that although the proceedings are civil, an equivalent to the criminal standard is appropriate. In civil penalties for failure to register, the distinction is likely to be academic. That will be generally apparent. I am grateful to the noble and learned Lord for agreeing with me that the civil and not the criminal penalty is the better one to address the nature of this issue. I assure the Committee that penalties will not be issued by a machine. I say to the noble Lord, Lord Thomas of Gresford, that the Secretary of State has discretion as to whether to impose a penalty. He must first be satisfied as to liability. That requires a human mind. I commend Clauses 33 and 36 and the draft code of practice in that regard. I really do think that a civil penalty is far better. I confess that I am rather alarmed by the suggestion that we should set about criminalising people in relation to this; very alarmed indeed.

Photo of Lord Lucas Lord Lucas Conservative

I am perturbed by this Government's proposal that we should adopt a "Shoot first and ask questions afterwards" approach to penalties. It is not civilised, and it will not be a comfortable kind of country in which to live if that becomes the general practice. It has always been the practice in this country to have penalties that start low and escalate, even in cases such as non-payment of taxes where the citizen is not suffering any inconvenience by non-compliance. You are faced with a £100 fine for being late, and it gets more serious if you continue in default. That seems to be the ordinary and civilised way of doing things. Having read the code of practice that has so generously been provided, it is clear that the intention is to impose the maximum fine—I have read it and if that was not the intention it should not have been written in that way—and on later application possibly to allow mitigation. That is putting the frighteners on. It is a seriously unpleasant way to proceed, and it is destructive of civil society.

I also do not really understand the noble Baroness's objection to criminalising things like this. I suspect that most of us in this House are criminals because we have had road traffic contraventions at some time in our lives. One disregards those as nothing in particular; you pay the fine, you go on your way and you accept the penalties. I have not noticed that it has ever been any serious disadvantage to my life that I have one of those to my discredit. I do not think that a penalty under this Act would be regarded any more seriously than that.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Since I hope it is on the same point, I shall just answer the noble Lord, Lord Lucas. I read it out, but I do not know whether I read clearly enough. Paragraph 6.15 makes it absolutely clear that the intention is not to impose the maximum fine.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I am most grateful to the noble Baroness for what she has said, but we are still in unfinished business here. She rightly discoursed on the closeness that can sometimes apply in civil cases where an application of a quasi-criminal burden of proof is sensibly applied. I still think, as she has persuaded me this far, that there is a good deal to be said for having a civil penalty, but we really have to look closely at the procedures. I will try to focus on this before we get to Report stage, and I hope that she might have time to do the same.

We are in a very complex area here, and there is always a danger of slipping back into Second Reading speeches. When one looks at Clause 37 under "Fees and Charges", one is reminded of the song in "Les Misérables" called "Master of the House", where one is charging for everything that happens in the hotel; tuppence for the mouse and so on. It is going to get very expensive, people are going to make a very great many mistakes, and they are going to find themselves issued with penalties. It really is important that we try to devise a system that is sensible for the Home Office to use and not oppressive to the citizen. I hope that we may revert to it.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I am immensely grateful for the many helpful contributions to this part of the evening's entertainment. I am grateful to the noble Baroness for her response. Her assumption that I was rushing towards criminal convictions is wholly misconceived. The noble and learned Lord, Lord Lyell, made the point that you can have a burden of proof in civil proceedings that more nearly equates to that applicable in criminal proceedings, and that is precisely what I am looking for. I am not looking to criminalise or anything of that kind, and I take the Government's point in that regard. We can all think about this matter before Report, but at the moment there is some distance between the Government and those who have spoken in favour of this group of amendments.

This is somewhat reminiscent of our earlier discussion about whether the requirement of the Secretary of State to attend an interview should be subject to a reasonableness test. It is rather on those lines, and I feel that it is not good enough to leave the matter as it is. It is all very well to say that the code of practice gives the Secretary of State discretion to do this or that and to consider this or that but, at root, there needs to be something in the Bill that makes it clear that intent is relevant to culpability. Indeed, in the noble Baroness's own justification for the Government's position she used the word "intentional" a number of times. That is natural because without intentionality there is no intention—to use the word again—to impose penalties. So why not put it in the Bill? I shall go on no further at ten to eleven but will join the noble and learned Lord, Lord Lyell, and others—and, I hope, the Government—in reviewing this matter because I do not think that it is satisfactory as left. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 122 not moved.]

[Amendment No. 123 had been withdrawn from the Marshalled List.]

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I invite the noble Lord to consider withdrawing this amendment as there is a great danger that we will go over much the same ground. I do not know whether the noble Lord has thought about it in those terms.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I was proposing to move this amendment in about 60 seconds because the issue is simple. We think that these penalties are substantially too great. We have proposed rather silly counters and this is not a bargaining game, although it may look like it. I do not stand by any of the replacement figures—changing £1,000 to £50 and so on. I am simply trying to bring into play the thought that the penalties here are too high across the board and to encourage the Government to think in terms of first offence and second offence penalties. I think we all accept that when someone is incorrigible and simply refuses to do what is reasonable in terms of attending an interview or whatever, he or she should cop it the second time round, but not the first time round. I leave it at that. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am grateful to the noble Lord for his rapid introduction because I think that we went over a lot of this in earlier amendments. The noble Lord is right. We could not possibly agree to a bargaining game in your Lordships' Chamber in the way that the amendment invites us to do. I simply invite the noble Lord to consider that any major reduction in the penalties of the order suggested would hardly be said to be a deterrent. In any event, it will be for the court to consider. The amounts will be imposed on a case-by-case basis having regard to the circumstances, and those will obviously be some of the matters that were raised in our earlier debate.

My noble friend Lady Scotland referred to paragraph 16, and the noble Lord, Lord Phillips, raised the issue of the degree of compliance. He is right that at the first instance one would not expect the upper end of the penalty to be imposed, but if there were a failure to conform on subsequent occasions of course one would expect the penalties to increase, and that is exactly what the draft code of practice says at paragraph 6.15. The end of that paragraph states:

"If the contravention is particularly serious or there is a history of previous contraventions, the penalty may be increased accordingly".

That is how we intend it to work. We would not initially expect the penalty to be imposed at the top end. We cannot see that reducing the penalties would in any way be a form of deterrent. We rely on the deterrent because it is an important part of the package. People need to understand that contravention is serious. I understand why the noble Lord has moved the amendment, but we cannot agree to it. He understands that and we think that we have the maximum penalties about right.

The code of practice is important in terms of interpretation and I would expect it to work well in those circumstances. Given the code of practice, the noble Lord should feel able to withdraw the amendment.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I am grateful to the noble Lord, but I am disappointed that he did not at least refer to the idea that one might have a first offence/subsequent offence arrangement. That would take some of the steam out of this debate. I do not see what would be lost. Will the Minister comment on that?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

That was why I quoted the code. The code is a draft so in a sense this is a consultation, but perhaps the noble Lord thinks that other words could usefully be put into paragraph 6.15 that make the point better. The paragraph states:

"As a general guideline, where it appears that an individual is liable to a penalty and that it is reasonable in the circumstances to impose one, the Secretary of State would regard a figure of one quarter of the maximum penalty as appropriate. That figure may be further reduced if appropriate e.g. if there are mitigating circumstances".

So we have a gradation in mind. Perhaps we can reflect on the wording of the code as it is in draft form, but that is its intention.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I was doing my best not to intervene on this group of amendments, but it would be helpful if the Minister would reflect further on the drafting. Will he take into account the very helpful moves that the Government made in respect of a code of practice in the Immigration, Asylum and Nationality Bill, which we debated last week at Second Reading, regarding penalties upon employers who employ those who should not be employed? I am sure that his noble friend Lady Ashton would acquaint him with the elucidation that the Government have carried out on that. I appreciate that the code of practice in this Bill is in draft form and perhaps there may be ways of accommodating the points made by the noble Lord, Lord Phillips, and by my noble friends without being counterproductive to the Government's intentions.

Photo of Lord Lucas Lord Lucas Conservative

Yes, but £750 for not turning up to an interview compared with £100 for being eight months late in filling in your tax return is a swingeing fine that is totally out of proportion. It is unreasonable to impose that sort of penalty for that sort of offence. According to the Government, an identity card is supposed to be something that we all want and would find great use for. Why should we impose such an enormous penalty for not doing something that we should be doing for our own benefit anyway? It should not require that kind of incentive to shift people into compliance.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am grateful to the noble Baroness, Lady Anelay, for her comments. Although I am not familiar with the detail, I am aware of the discussions on the code relating to the IAN Bill. This Bill does not have to be in place until 2008, so there is plenty of time to reflect on the points that have been made.

Regarding the point made by the noble Lord, Lord Lucas, it simply will not do to set up a system that does not encourage compliance. We must accept that there will be people who play the role of refuseniks and a penalty scheme is in process to ensure that we get maximum compliance. We would be foolish to have a system that worked in any other way. As to the level of penalty that the court ultimately imposes, we need guidance that makes it clear that the position gets more serious as breaches accumulate. That is a good principle, but I am sure that we can think a little more about how we make it clear to people that non-compliance will not be acceptable.

Amendment, by leave, withdrawn.

[Amendment No. 125 not moved.]

[Amendment No. 126 had been withdrawn from the Marshalled List.]

[Amendment No. 127 not moved.]

[Amendment No. 128 had been withdrawn from the Marshalled List.]

[Amendment No. 129 not moved.]

[Amendment No. 130 had been withdrawn from the Marshalled List.]

[Amendments Nos. 131 and 132 not moved.]

Clause 6 agreed to.

Clause 7 [Procedure for orders under s. 6]:

[Amendment No. 133 not moved.]

Photo of The Earl of Northesk The Earl of Northesk Conservative

moved Amendment No. 134:

Page 6, line 20, at end insert "; and

( ) an appropriate review of the operation of the voluntary ID card scheme has been conducted under the auspices of the National Identity Scheme Commissioner and reported to Parliament."

Photo of The Earl of Northesk The Earl of Northesk Conservative

I hope this amendment is relatively straightforward. While emphasising the intention to move ultimately to a compulsory scheme, the Government make much of their claims that enrolment onto the national identity register is to be voluntary in the first instance. Indeed, as I have already suggested, this has been the primary mechanism for engendering public acceptance of the proposition. However, once the Bill is enacted, there is very little on its face to constrain the Secretary of State from making immediate application for it to become compulsory. At the very least, any move towards compulsion needs to be informed by independent analysis of the experience of the voluntary scheme, something that the national identity scheme commissioner would be ideally placed to provide. The Minister, at least in part, agrees with the point. As she said at Second Reading,

"government will need to be satisfied that initial rollout of identity cards has been a success before moving to compulsion".—[Hansard, 31/10/05; col. 113.]

That is a sensible and proportionate way forward. Moreover, given that our debates on the Bill have revealed manifest concerns about costs, technology and a host of other matters, the argument in favour of a thorough review of the scheme before moving to compulsion is that much more persuasive. That is what the amendment provides. I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I welcome my noble friend's amendment. Of course, he will be aware that I would rather an order did not have to be made and that this change should be made by primary legislation, but if the Committee eventually agrees to the super-affirmative procedure, then the discipline introduced by my noble friend's Amendment No. 134 would be welcome.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I would like to identify myself with this extremely sensible suggestion. It would be a good prelude to a more effective compulsory stage.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I understand the purport of the amendment. Of course, we shall want to listen to the views of the national identity scheme commissioner. I would expect that she or he will wish to comment on plans for compulsion. We do not believe that it would be right to provide a requirement in primary legislation that Ministers should have to await a review by the commissioner before being able to make a compulsion order using the super-affirmative resolution procedure in Clause 7. We believe that that would add unnecessary delay and, while we have no intention of rushing plans for compulsion, the process of the super-affirmative order itself will be bound to take some time to complete.

Of course, I am not saying that we would not benefit from the views of the national identity scheme commissioner. As I have indicated, we would wish to know the commissioner's views and any report that the national identity scheme commissioner produced would be laid before Parliament for its consideration. However, for the reasons that I have given, we do not think that we should be bound to wait for such a report from the commissioner before the Secretary of State could make a compulsion order using the super-affirmative resolution procedure under Clause 7. Therefore, I ask the noble Earl to withdraw his amendment.

Photo of The Earl of Northesk The Earl of Northesk Conservative

As ever, I am grateful to the Minister for her reply, although I am a little confused by it. She talks about delay being imposed on the Government. One of the features of our debates is that the whole Bill has built-in delays. I singularly fail to understand that argument. I fail to understand, bluntly, why the national identity scheme commissioner should not inform the process of the move to compulsion and be required so to do in statute. It seems to me a perfectly logical and acceptable proposition. I regret to say that I am unconvinced by the Minister's arguments in response to the amendment and I feel the obligation to test the opinion of the Committee.

On Question, Whether the said amendment (No. 134) shall be agreed to?

Their Lordships divided: Contents, 26; Not-Contents, 50

Division number 2 Private Parking: Ports and Trading Estates — Identity Cards Bill

Aye: 24 Members of the House of Lords

No: 48 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 135 and 136 not moved.]

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour 11:15 pm, 12th December 2005

moved Amendment No. 137:

Page 7, line 7, at end insert—

"( ) The Secretary of State, before making an order containing any provision for compulsory registration, must consult on whether, and the extent to which, this requires him to regularise the status of foreign nationals residing in the United Kingdom without entitlement to remain."

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

In moving Amendment No. 137 I shall seek to demonstrate why the Secretary of State will need to develop a procedure and, in turn, to consult on such a procedure for regularising the position of foreign nationals residing in the United Kingdom without entitlement to remain—in other words, illegal immigrants.

The Bill, along with the Immigration, Asylum and Nationality Bill, radically changes the context in which this question has to be considered. The Home Office produced an invaluable study in June called Sizing the unauthorised (illegal) migrant population in the United Kingdom in 2001. In estimating the number for 2001, the methodology was to subtract from the central estimate of 3.6 million—that is the total foreign-born population—the total legal foreign-born population of 3.2 million. The result was a central estimate of 430,000. Given developments since then, the usual figure bandied about is 500,000; that is, 0.5 million.

The Minister, Tony McNulty, said at that time that this is only an estimate and should not be seen as a definitive figure. It is a useful contribution to the debate and underlines the need for a robust ID card system which will, among other benefits, help to tackle illegal working and immigration. Let us assume, for argument's sake that about half of the 0.5 million—250,000—will ultimately have their position regularised. I note that the Explanatory Notes, in dealing with Clause 5(3), say:

"For example, third country nationals may be required to provide information regarding their immigration status".

Amendment No. 137 reflects the fact that the enactment of this Bill will catalyse a substantial programme of regularising the position of thousands of illegal immigrants.

At Second Reading last week on the Immigration, Asylum and Nationality Bill the noble Lord, Lord Chan, took the example of the number—probably more than 100,000—of people working in Chinese restaurants whose status may not so far have been inquired into too closely, under the traditional social contract in Britain, which will now have to be changed, that people's status is not of much concern to the authorities.

Similarly, we have the regularisation taking place in conjunction with the Gangmasters (Licensing) Act. Some trade union officials whom I know, along with the National Farmers' Union, as well as employers in the food processing industry have worked hard to make credible the rules governing the regularisation of the position of people employed by gangmasters. I am talking about regularisation from the point of view of employment law and taxation et cetera. There is a connection. There is a benefit to society of the regularisation of many of the people involved. We have only to look at the case of Morecambe Bay to know that many of those people were in a position that has parallels with that described by the noble Lord, Lord Chan.

The amendment facilitates an active rather than a passive strategy of regularisation. The issue is not so much whether to have a process of regularising the status of some hundreds of thousands of people, but how thought-through, coherent and transparent the strategy will be. We do not want them all to stay underground in the black economy, where their situation and that of the economy and the security of the nation would be worse.

I do not doubt that there are procedures under the immigration Acts for regularising the position of people who have been in the country for 15 years or so. However, the Bill and the parallel Immigration, Asylum and Nationality Bill will catalyse a whole new range of questions and there will be a timetable within which those questions will need to be answered. We need to consider how the immigration Bill will affect people's wish to come forward to try to regularise their position. I do not expect my noble friend to guesstimate this evening how many of the 500,000 will, at the end of this exercise, have their position regularised. It is not prima facie likely that the Bill and the immigration Bill will prove to be the last word on the subject.

In conclusion, I ask my noble friend to take on board that we need an iterative process updating the rules governing the right to remain in the light of the huge changes in the architecture brought about by those two Bills. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I support my noble friend's amendment. I, too, contributed to the debate at Second Reading last week on the Immigration, Asylum and Nationality Bill on a brief supplied by the Joint Council for the Welfare of Immigrants. Pressure is growing for the introduction of a regularisation system. The council believes that there should be early consultation on a scheme of regularisation whereby illegals could eventually become legal and documented workers. That is an important issue and I support my noble friend's amendment.

Photo of Lord Crickhowell Lord Crickhowell Conservative

The noble Lord has raised an important issue. I am only slightly put off by the horrid word "regularisation", which comes a little out of 1984. I suppose that some would say that regularisation in this context means that illegal immigrants, whatever their circumstances, must be immediately booted out. However, the noble Baroness rightly suggested that there is another possible approach. I, too, have in front of me the figures cited by the noble Lord when he moved the amendment.

One of my noble friends who is not in the House tonight suggested to me during one of our earlier debates that we may well have a situation in which rather more—perhaps three quarters of a million or so—might suddenly have to leave the country. Of course, some of those people we probably want out of the country pretty quickly. Some of them obviously should not be here and I should not argue that they should stay. However, I suspect that, apart from those working in Chinese restaurants and the others to whom reference has been made, there are probably a good many people working for families as nurses, doing domestic work or working in essential public services whose position is not straightforward. We would face some severe social problems and economic disruption if, suddenly, we had a mass exodus. That would cause a great deal of tension and a lot of ill will.

Some of those people have come here perfectly legitimately and then been either careless about renewing their permits or scared out of their wits that they might have to leave the country and go somewhere that they thought was dangerous and, somehow, have stayed on. The noble Lord is right to say that that issue must be studied with understanding and sympathy. A number of other countries introducing legislation of this kind have, with it, introduced an amnesty. They have found it necessary to provide an amnesty to cover the kind of situation that has been referred to. I do not know what the Government's intentions are, but it is an important issue; it ought to be considered sooner, rather than later; we should know what the Government's feelings about it are.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My noble friends Lady Turner and Lord Lea have identified an issue of concern. I fully understand why they have that concern. Before compulsory registration is introduced, the position of those foreign nationals here illegally, especially those who are in settled employment and have resided here for a period of time, should be considered sympathetically. I understand why they say that.

Undoubtedly, this is one of the areas that would be looked at before compulsion is introduced. Nevertheless, it is right to remind Members of the Committee that the Immigration Rules already allow people who have been here lawfully for 10 years, or unlawfully for 14 years, to seek indefinite leave to remain. So, if the move to compulsion brought to notice people who had been here for a considerable period, those who had been here for 10 or 14 years in the categories that I have mentioned, could already apply for settlement here under the Immigration Rules.

As we have just discussed, it is likely to be a number of years before the compulsion provisions are introduced. So I would hope that no one here illegally will wait that long in the hope that his or her stay will be regularised. Anyone who wants to work or reside in this country should seek to do so now under the Immigration Rules. Members of the Committee will know that we have tried to make it as easy and as straightforward as possible for those who have a legitimate basis to be in this country to do so under the rules that we have now provided. I understand my noble friend's concern and I am sure that he will understand that it would be wrong to promise any blanket amnesty.

I hope that I can further reassure my noble friend. The introduction of a general requirement to register and obtain an identity card is for the future once the initial rollout of the identity card scheme is complete. However, I am confident that the government of the day will give sympathetic consideration to the cases of any person or people who did not quite benefit from these existing long residence provisions, but whose time here was such that it would be wrong to expect their departure from the United Kingdom to be enforced.

I agree with my noble friend Lord Lea that it is right to be ready to look at such cases if and when they arise, but I do not think that it would be right to include a commitment to do so in this legislation. I acknowledge the support that the noble Lord, Lord Crickhowell, gives to this measure. I see the force of what was said. There is a risk that accepting my noble friend's amendment would imply that special treatment will be accorded to illegal immigrants. There will also be a risk of uncertainty that this Government are serious about the aim of controlling immigration. One of the key purposes of the scheme is immigration enforcement, and this would be undermined. Not only that, but I fear that there is a risk that accepting this amendment might even be seen—I know that this is not what my noble friend seeks—as encouraging people to overstay their leave to remain by offering a prospect of regularisation in the future. It would not be right to do that. Identity cards are intended to reduce the pull factor by making it harder for people to live here illegally, not to imply that we will be bound to regularise the position of people here illegally when identity cards become compulsory. I reiterate to my noble friends and the noble Lord, Lord Crickhowell, that we recognise their concerns. But, having voiced them, I would ask him to withdraw his amendment.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour 11:30 pm, 12th December 2005

I am grateful to all noble Lords who have taken part to assert that this is an important question. My main contention is that, prima facie, a pretty big change is taking place in the environment of the Immigration Rules arising from this Bill and the partner Bill on immigration. It is therefore implausible to think that simply carrying on with the current Immigration Rules will deal with a huge volume of people seeking to register under the ID card scheme. Do we really want them to come forward to register and so regularise their position? Many of them will qualify to do so. I apologise, but I am rather sympathetic to the point made by the noble Lord, Lord Crickhowell, about the aesthetics of some of the language we are using, but as George Orwell said, there are worse things than the word "regularisation".

Now that we have some statistics which quote the figure of around half a million, perhaps the Government and the opposition parties will have the courage not to play politics here, but will try to look behind what a lot of these people are doing. We can all imagine what I would call the Daily Mail way of treating this subject, but some of us think that we should not be too intimidated and worried about what the Daily Mail says because we can look at the reality of how our economy is working at present.

There is no rush to do this nor, perhaps I may say, is there any reason to tilt at windmills. I am grateful to my noble friend on the Front Bench for the positive tone of her response, but perhaps I may put on the record that not only is there no wish on my part to undermine the immigration control system, but also that I quite specifically did not use the word "amnesty"—although a partial amnesty might be implied if one wishes to use the word. I am afraid that when my noble friend used the phrase "blanket amnesty", she was tilting at a windmill. I want to take the opportunity to make it clear that that is not the idea behind the amendment.

On the basis that the Government will look at the picture presented by the real people involved in all the various areas of employment, at this stage I wish to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

moved Amendment No. 138:

After Clause 7, insert the following new clause—

"REGISTRATION: VOLUNTARY NATURE

Apart from the provisions of sections 6 and 7, registration is a voluntary matter and the Secretary of State may not exercise powers of compulsion in such cases without the authority of both Houses of Parliament."

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

In moving Amendment No. 138 I shall speak also to Amendment No. 161 grouped with it. I have to confess that I do not like the Bill very much. It should not be imagined that everyone on this side is happy about it. I certainly am not. It is not so much the idea of cards; we had them during the Second World War and got used to them. However, we always regarded them as temporary and I recall that we were delighted when we did not need them any more. The noble Lord, Lord Crickhowell, is quite right about that. Rather it is the creation of a national register, a database, that many of us find unacceptable. In my view it transforms the relationship between the citizen and the state. There is no suggestion either that the whole set-up is of a temporary nature to be used during a perceived emergency. Once in place, it will continue. Who knows what the future may hold? A register of the kind envisaged would be a tremendous weapon in the hands of an authoritarian government. I do not doubt the intentions of the present Government; I am sure they are entirely benign, but it may not always be like that.

We are told that the amount of information required on each individual will be limited and that privacy will be protected. That may well be so at the beginning, but as we know, the technology exists to make the scheme very extensive, and who really wants that? Most people value their privacy. A few may not—they may write diaries intended for publication—but for many their privacy is part of their identity. Their family history, their health records, their marital—and, yes, their extra-marital—records are their personal property, to be divulged only with agreement for specific purposes.

The reasons advanced by the proponents of the new scheme do not seem very persuasive to me. They have been discussed many times in the debate today. It is for these reasons that I have drafted a couple of amendments. Some people say they support the introduction of such a scheme; they claim they would find it useful. So let us have a genuinely voluntary scheme and say so on the face of the Bill. Incidentally, it would be a good indication of just how popular the idea really is with most people.

The amendments also oppose the introduction of compulsion by stealth. It will not be possible under Amendment No. 161 for any provider of services, whether in the public domain or private, to insist upon the production of an ID card before goods, services or employment can be provided.

It has been claimed again today that the system is likely to be popular, but I think few understand that an over-arching system of surveillance of the whole population is intended to which access will be relatively easy. The indications are that when people begin to realise precisely what is intended, support for the scheme would substantially diminish. I believe that the scheme should be a voluntary one. If it turns out to be popular, then consideration could be given to compulsion. But that should only become necessary, in my view, in situations of dire public danger, the like of which we have not seen since the Second World War.

I appreciate, of course, that we discussed the issue of compulsion or not compulsion earlier today—and no doubt we will discuss it again—but my amendments are slightly different and less complex than those put forward by the noble Baroness, Lady Anelay. I am sure that we will come back to the issue of compulsion as against voluntariness when we discuss the matter on Report. In the mean time, I beg leave to move my amendment.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

What does the noble Baroness mean at the start of her amendment by,

"apart from the provisions of sections 6 and 7"?

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My recollection is that these amendments are specifically directed to certain individuals who would be regarded by the Government as being required to register. People who are not required to register should be allowed to be volunteers.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

I am grateful to the noble Baroness. I think Clause 6 is wider than she realises. She would not accept it from the purview of her amendment if she realised that that is the clause that would be used by the Government to make the scheme compulsory for the population at large.

I respect the experience that the noble Baroness brings to the Committee. It made me listen to her introduction of the amendment very carefully. It carries a weight which contributions from innocents like me cannot carry. I support what she said.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

The noble Baroness has done the Committee a service in bringing forward amendments which are in their very nature, as she said, more straightforward than mine. I assumed Amendment No. 138 meant something rather different from that assumed by the noble Lord, Lord Phillips of Sudbury. I found it to have great resonance with what I am trying to achieve: an honesty whereby Clauses 6 and 7 are the only parts of the Bill which enforce compulsion. I found refuge in Amendment No. 138 in that it appears to require that before Clauses 6 and 7 come into effect, the whole process must be truly voluntary in the sense that an individual can opt into the system if he chooses but is not forced to have the document. I found this a very straightforward—I would not call it simple because the noble Baroness is never simple—way of achieving a laudable objective.

I also welcome Amendment No. 161, which will give noble Lords the opportunity to consider, between now and Report, what should be the rights of people to obtain services to which they are freely entitled—by which I mean free at the point of use. What right do they have to continue to have access to those services without having first to apply for an identity card?

These are essential amendments; it is unfortunate that they have been reached at our current state of play but that is the way things happen. I welcome the opportunity to consider these more between now and Report.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I, too, welcome the amendments although it would be fair to say that we have gone over quite a lot of this ground already. But they introduce one or two novel elements, and it is worth going through them to cover some of the questions they raise.

We are trying to introduce the scheme in a practical way. We want to be thorough about it; we want it to work. Even the scheme's opponents recognise and appreciate that. We have the political authority to do it and we make no bones about that.

The practicalities of introducing an identity card scheme are such that we did not think it right to have a "big bang" approach, as we have said before. That is why it is incremental. Identity cards are issued initially to those who apply for them either as a stand-alone item or linked to the renewal of a passport or other designated document. In this initial phase, no one who refuses to apply for an identity card could be liable for a penalty.

Once we have designated passports under Clause 4 which will require parliamentary approval under the affirmative procedure, anyone applying for renewal of a passport will also be issued with an ID card. By that stage, we will already have biometric passports and the application process will be very similar, if not identical, for the passport and the ID card. Some people may prefer not to use the ID card that is issued to them with the passport and no one will be subject to any penalty if they choose not to apply for or renew a passport.

For those reasons and others, I cannot support Amendment No. 138. It is unnecessary because the only provisions that can be used to compel people to obtain an identity card are those contained in Clauses 6 and 7, as has been said.

Amendment No. 161 is also unnecessary as we already have an adequate safeguard in Clause 18, which is entitled:

"Prohibition on requirements to produce identity cards".

Clause 18 will make it unlawful, in advance of compulsion, for anyone to require an ID card to be produced as proof of identity unless there is also a reasonable alternative method allowed for establishing identity or, in some limited circumstances, where the requirement relates to the provision of a public service which has been linked in regulations to the identity card scheme. This means that if a bank requires proof of identity before someone opens an account, it will be able to ask for an identity card but, in its initial phase, it would have to allow for the option of producing, say, a passport or a photo driving licence as alternative proof of identity.

Of course, it might be said that the safeguard in Clause 18 should continue after compulsion. That would undermine one of the purposes of the scheme, and it is an important one—that once every resident here can be expected to hold an identity card, that should become the gold standard of identification and there should be no bar to using it as such. Clause 18 is there to prevent organisations jumping the gun by insisting on an ID card being produced when only a small proportion of the population have been issued with them.

I understand the concerns of the noble Baroness, Lady Turner, but the ID card scheme will be rolled out incrementally over a number of years. In the initial phase, it will not be compulsory to hold or use an ID card. The second, compulsory phase will only be introduced some time after the initial roll-out, once a high proportion of the population has already been issued with an identity card. That is our case against these amendments. They are useful to debate and I hope that the noble Baroness, although she disagrees with what we are trying to do, will recognise that the way in which we are doing it is designed to make it work better and that many of the fears about penalties that might be imposed as a product of the roll-out process are not in fact there at present.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I thank my noble friend for that response, but it does not really answer my main concern because it is clear from his response that the Government regard this as a roll-on to compulsion. In other words, the eventual aim is compulsion and the Bill itself is a kind of lead in to compulsion. That is how it seems to me, even from the statement that he has given. What he says about Clause 18 is very useful, but it does not overcome the main objection and the reason for the amendments in the first place. Of course, it is very late at night to have this discussion and I have had to wait a long time to get to this amendment. There is no point in pressing this much harder at the moment, but I am sure that we will return to it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

moved Amendment No. 138A:

Before Clause 8, insert the following new clause—

"PARLIAMENTARY CONTROL OVER STANDARDS AND ADMINISTRATION OF ID CARDS

(1) Parliament shall have the sole power to decide—

(a) whether a voluntary or compulsory ID card scheme shall be introduced in the United Kingdom;

(b) who shall be required to possess an ID card, or shall be issued with an ID card, or be entered in the National Identity Register, in the United Kingdom; and

(c) the security standards required in any ID card or National Identity Register in the United Kingdom.

(2) No international body may impose on any United Kingdom citizen the duty to attend or to have attended at any place for the purposes of the issue, or in connection with preparations for the issue, of an ID card and a United Kingdom citizen shall have free passage throughout the United Kingdom and the member states of the European Union without the need to fulfil any such obligation, except as shall have been agreed, or determined, by statute in the United Kingdom.

(3) No Minister of the Crown may enter into any undertaking within the European Union to introduce an ID card scheme or identity register in the United Kingdom, or propose or agree any common standards in relation to such a scheme, unless and until Royal Assent has been given to this Act or any other statute introduced for that specific purpose."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I tabled the amendment in response to an article I saw in the Times on 25 November. I could hardly believe my eyes, but I hope that the Minister will be able to tell me in response that the Times is, most unusually, ill informed.

The article said that the EU could share ID databases. It states that confidential personal information about British citizens could be shared with governments and the police across Europe under proposals put forward at the Commission. I understand that the story arises out of intergovernmental work that is being carried out behind the scenes on EU national identity cards. Is the Prime Minister using the UK presidency to work on agreeing common standards for ID cards? What stage have these negotiations reached? What involvement has there been by the British Parliament? What information has been provided to the British Parliament on these matters? When has any information been made available to the British Parliament? My amendment makes it clear that the UK Parliament should have the sole power to decide: whether we should have any kind of ID card scheme in this country, voluntary or compulsory; who should be required to possess an ID card or be issued with one—which should be subject to decision by this Parliament alone; and that this Parliament alone should decide on the security standards that should underpin a UK system.

The amendment makes it clear that no UK Minister can enter into an undertaking to introduce any ID scheme within the EU or agree to any common standards within the EU until and unless Royal Assent has been given to this Bill. I beg to move.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative

I support the amendment and can perhaps cast a little light on the questions put by my noble friend on the Front Bench. In supporting the amendment I fear that I will have to cast doubt on its usefulness even if it were to pass into law. The amendment assumes that Her Majesty's Government still have the power to refuse to sign up to an EU identity card system unless Parliament—this Parliament—has first given its consent. In other words, the amendment assumes that the United Kingdom still has the veto in this area. To understand why that may not be so, I regret that I must take your Lordships into a little of the detail of the Treaty of Nice and the subsequent Hague multi-annual programme for strengthening the EU's area of freedom, security and justice.

I start with the Treaty of Nice, which, as your Lordships know, in the absence of the proposed EU constitution, is still the legal basis for the whole depressing project of European integration. I point out that Title IV, encompassing Articles 61 to 69 of the treaty establishing the European Community—the TEC—is entitled, "Visas, Asylum, Immigration and other Policies Related to the Free Movement of Persons". I apologise for the eternal density and dreariness of Euro-speak, but I fear that there is more to come. But experienced Euro-sceptics among your Lordships will already have pricked up their ears and asked themselves, "Is it possible that Brussels has the nerve to introduce a European ID card as a policy related to the free movement of persons?"

If your Lordships will bear with me, I can tell you that the answer starts to emerge from Article 67 of Title IV, which was inserted into the treaty at Amsterdam in 1997. To paraphrase Article 67, it says that for five years after the signing of the Amsterdam treaty, policies related to free movement of persons as well as visas, asylum and immigration were to be decided by unanimity. In other words, for five years after Amsterdam we kept the veto on initiatives brought under Title IV. But after that period of five years, Article 67 empowered the Council to take a unanimous decision, supported by the European Parliament, to move all or parts of Title IV to the qualified majority voting procedure under Article 251 of the treaty—or the co-decision procedure, as it is known in the jargon. Under that procedure, nowadays we have some 8 per cent of the votes.

Some of us did our best to object to Article 67 when the Bill relating to the Amsterdam treaty was going through your Lordships' House. But, as usual, we were told that we could not amend a treaty that had been stitched up in the Council of Ministers and that anyway the Government had retained the veto and could prevent Title IV moving to qualified majority voting, so we had nothing to worry about. So much for the Treaty of Amsterdam, as carried forward into the Treaty of Nice, which is the current legal basis for the European Union.

We then move to the so-called Hague programme. In May this year, the Commission reported to the Council and the European Parliament on the programme's 10 priorities for the next five years. On page 4 of that document, we find that,

"on 22nd December 2004 the Council was able to adopt a decision applying co-decision and qualified majority voting to all Title IV measures, with the exception of legal immigration, as of 1st January 2005".

So the Government appear to have failed to exercise their veto on 22 December last year, and the whole of Title IV, controlling visas, asylum, immigration and other policies related to the free movement of persons, seems to have passed to qualified majority voting and co-decision.

To get some idea whether that could include identity cards, we move on to page 18 of the Hague report, where we find a heading entitled:

"Coherent approach and harmonised solutions in the EU on biometric identifiers and data".

The second paragraph under that heading tells us that the Commission is involved in,

"preparation for the development of minimum standards for national ID cards from 2005 onwards".

The third paragraph tells us that the Commission is also making preparation,

"for the development of minimum standards for sectors specific ID cards, if appropriate, from 2005 onwards", which sounds rather worrying. Will the Minister tell us what those specific sectors might be?

I may be wrong, and no doubt the Minister will tell us if I am, but I fear that that means that the United Kingdom can be outvoted in all the areas under Title IV, which now appear to include ID cards. If some noble Lords think that suggestion somewhat farfetched, I remind them of the EU's ability to produce policies that bear little or no resemblance to their purported legal justification in the treaty clauses. There have been many examples of this over the years, perhaps the best known being when Prime Minister Major thought the UK had escaped the Working Time Directive when he opted out of the Social Chapter, only to find it brought in through the back door of qualified majority voting in the provisions for health and safety at work.

Today the EU project continues as though the people of France and the Netherlands had not voted down the proposed constitution. Written Answers I received this year on 6 July reveal that the substantial EU space programme has been based on a Council decision which is to be agreed only at the end of this year. They also reveal that the EU's new Fundamental Rights Agency in Vienna relies for its legality on Article 308 of the TEC, being the original catch-all clause in the 1957 Treaty of Rome. That allows the EU to do anything in pursuit of the Common Market provided there is unanimity in the Council. How the new Fundamental Rights Agency in Vienna is justified by this is a mystery.

Better still, and finally, on 19 July this year the Government told me that there are no formal or informal legislative proposals or other EU initiatives which rely on the proposed constitution—now in limbo. Yet for months before the French and Dutch votes we were told by every Eurocrat in sight that the heavens would fall in and the EU would grind to a halt if the constitution was not passed. So I fear that we are dealing with people who are perfectly capable of introducing EU identity cards via the qualified majority voting system against which we would have no response if we objected to it. So I look forward to the noble Baroness's reply.

Photo of The Earl of Caithness The Earl of Caithness Conservative

I too support the amendment moved by my noble friend Lady Anelay. I do so from a different angle. I have the honour of being a member of Sub-Committee F, the European Union Sub-Committee on Home Affairs. This is exactly the sort of issue the sub-committee should have looked at, but it has not. I am ashamed of my old department. The Home Office quite deliberately did not submit the papers for scrutiny to the sub-committee. Not only did it not submit the papers, it did not think that any information on minimum standards across the Community for identity cards should be revealed at all.

I fear that the situation is slightly worse and that my noble friend is trying to shut the door after the horse has bolted. As I understand it, the whole question of minimum standards was agreed at the JHA Council on 1 and 2 December this year, a mere week ago. Not only was Parliament totally ignorant of what was happening; the sub-committees were totally ignorant of it happening. This was a quite deliberate policy of the Home Secretary and the Home Office. The Home Secretary promised to keep the sub-committee informed but he did not. He did not send the papers. The papers were obtained on the website of another organisation.

This is an intolerable way to treat Parliament and to treat a sub-committee of your Lordships' House. I hope that the noble Baroness has an apology to make to all of us.

Photo of The Earl of Northesk The Earl of Northesk Conservative

I also support the amendment. Notwithstanding the comments of my noble friend Lord Caithness, I do wonder whether subsection (3) of the amendment now has any relevance. As I understand it, and I hope the noble Baroness will be able to confirm this, under the UK presidency what actually happened last month is that a ministerial decision was approved, and that ministerial decision stated categorically that, come 2010, all member states were committed to introducing a biometric ID card across the board all over Europe. So I do wonder whether the capacity of this Parliament on this particular issue has been circumvented by a ministerial decision. I hope, perhaps rather less forcefully than my noble friend Lord Caithness has put it, that the noble Baroness will be able to clarify the point.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I may have turned into a pumpkin a long time ago.

I am grateful to the noble Baroness, Lady Anelay, for tabling the amendment because it gives me an opportunity to explain the role that the European Union and the member states of the EU are playing in relation to identity cards. As delighted as I would be to go through with the noble Lord, Lord Pearson of Rannoch—as I think I may have done on a number of occasions in the past—Amsterdam, Nice and the Hague, I do not think that I shall be able to do so tonight, although I am more than happy to write to him on those details. I shall try to respond to the noble Lord this evening in short form if he is content with that.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative 12:00 am, 12th December 2005

The noble Baroness is very gracious but all I and the House need her to do is to let us know whether she disagrees with any part of the story that I have put on the record this evening.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I probably agree with quite a lot of the interpretation and the nuances. Then we would have to discuss what that actually meant in relation to the Bill and where I disagreed with the noble Lord; for example, that we did not make clear what would prevail had the constitutional treaty been implemented. There would be quite a lot to discuss. Although the noble Lord and I might enjoy that discussion, I doubt that many Members of the Committee would join in our revelry.

The first point to note is that in drafting this Bill the United Kingdom is operating entirely on its own initiative. We are under no obligation, be it from the EU or from any other international body, to introduce identity cards. Quite separately from the proposals contained in this Bill, the United Kingdom has been working on a purely intergovernmental basis with other member states of the European Union to agree common minimum security standards for identity cards. Council conclusions based on the work of national experts on the minimum standards were agreed at the EU Justice and Home Affairs Council on 1 and 2 December, and have been published on the Europa website—so it is all there now.

I shall set out the sound and sensible reasons for this intergovernmental work. As the Committee knows, there is no such thing as an EU identity card. Each member state legislates, if it so wishes, for its own identity cards scheme. However, in order to ensure that the principle of the free movement of persons is adhered to, each member state must accept identity cards issued by the other member states as proof of treaty rights. Indeed, we were already accepting identity cards issued by certain other European states as travel documents on a bilateral basis even before we first joined the then European Community. It has become very common since then for European citizens to be able to use their travel document, in the form of an identity card, to come here.

It follows that if one or more member states are producing identity cards which are not secure and which are easily forged, then all the member states are open to abuse of their immigration systems. Agreeing common minimum security standards will limit the scope of such abuse. So it is in the interests of the United Kingdom to encourage the highest standard of identity cards issued by other member states so that we do not face problems with illegal immigrants attempting to use forged or improperly obtained identity cards issued by another member state to enter the United Kingdom. Thus it is in our strong interests to participate in and encourage that work even though we do not currently have an identity cards scheme and irrespective of whether we ever introduce identity cards. Whatever happens, this work will have to be undertaken. I should reiterate that the ongoing discussions relate only to minimum security standards in identity cards and are on a purely intergovernmental basis and thus non-legally binding.

Regardless of whether the Bill receives Royal Assent, the United Kingdom will continue to co-operate on an intergovernmental basis on the issues of minimum security standards for identity cards. Whether or not we have our own identity cards scheme, it is in our interest to ensure that all those who produce an identity card issued by an EU member state as a travel document to enter the United Kingdom to demonstrate their treaty rights are entitled to that document and to those treaty rights. I hope that noble Lords will feel reassured that it is the United Kingdom Parliament alone, on its own initiative, that is legislating for the introduction of an identity card scheme in this country. The discussions that are ongoing, on an intergovernmental basis, between the member states of the European Union are aimed at addressing the problem of identity cards that are issued to a very low security standard. Those discussions do not purport to introduce, nor are they a precursor to, any single EU identity card scheme.

I take very keenly the complaints and concerns expressed by the noble Earl, Lord Caithness, in relation to the work of the Select Committee on the European Union, which is chaired by my noble friend Lord Grenfell, who wrote to the Home Office in that regard. We replied to that letter, and we made it clear that while we appreciated the wish to be involved in the work on this issue we had to stress that there was no requirement for non-legally binding documents, such as the draft that was submitted to the December Justice and Home Affairs Council, to be deposited for scrutiny. Those are the conclusions of the representatives of the member states acting on an intergovernmental basis; they are not EU Council conclusions. As recognised in the third recital to the conclusions, no legally binding standards or timetables have been imposed. This is a non-legally binding intergovernmental initiative.

Therefore, we produced the recital, and it is specifically referred to in the fourth recital of that document. It does not affect the right of any member state to decide whether to issue an identity card. My right honourable friend the Home Secretary wrote his letter of 31 October simply to inform the Committee that the work was going on because it would be of interest to the Committee while this was taking place. We were confident, and my right honourable friend the Home Secretary expressed his confidence, that agreement on these standards, which all member states now regard as important, would represent significant progress in enhancing document security and fulfilling the remit of both the Hague programme and the July Justice and Home Affairs Council.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative

Very briefly, as it is very late, will the noble Baroness confirm that the Commission and the European Union are taking steps to alter this position, and that they do plan to make these arrangements legally binding?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Nothing in the data that I have would indicate that is the case. The noble Lord will know that we have stressed the importance of working on an intergovernmental basis. The noble Lord also knows that intergovernmental means unanimity, and that we have our veto. We could talk about what is happening in relation to Title 4 for quite a long time. I am sure that we could talk until at least the morning on these issues, because the details are extensive. I know that the noble Lord, Lord Pearson of Rannoch, wishes our procedures to be robust so that we can make sure that those who come here using the European travel documents as a result of free movement can be properly processed through our immigration procedures. He wishes us to have the strongest and most robust provisions to guarantee that our immigration rules are not flouted in a way that is improper. The minimum standards will help us to secure that, so that those European states that may not have the most robust system can be encouraged to raise their standard to one that we believe would be more appropriate.

Photo of The Earl of Northesk The Earl of Northesk Conservative

Will the noble Baroness comment on the observation that I made about the ministerial decision made last month under the UK presidency? It is important to get a finger on the pulse of this matter. As I understand it, the ministerial decision categorically approved a pan-European basis for the ID card. I absolutely understand the argument that it is not a legal commitment; none the less, the decision was made at ministerial level to commit the whole of Europe to an ID card system. I seek some clarification on that point.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

That is not right. The commitment was for minimum standards. If—which is not admitted—any country chooses to have an identity card, that card should comply with certain minimum standards so that it can be used with confidence throughout the Union. The commitment does not oblige us to have an identity card; it creates certain safeguards so that other European countries which choose to have an identity card have an appropriately high standard for the integrity of that card. In that way, we can be confident that when the card is used by another European citizen coming here it is a genuine card and one upon which we can rely. It is in our interests to ensure that countries which choose to have an ID card do so robustly and with integrity.

Photo of The Earl of Caithness The Earl of Caithness Conservative

I am very disappointed by the noble Baroness's reply. She hid behind words in a manner that is not usual for her. Notwithstanding the correct point that she made, does she agree that, given that the minimum standards came about as a result of the Hague programme and that they were based on a Council resolution and prepared using facilities and paper in Brussels, it would have been courteous for the matter to come before the sub-committee of your Lordships' House and that not to have done so was to show disrespect and disregard for our committee system?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I assure the noble Earl that it was not the intention of the Home Office or my right honourable friend the Home Secretary—and it would never have been mine—to show anything other than the utmost respect for the Select Committee on the European Union. The noble Earl, of all people, knows the high regard in which the committee is held, the attention that is paid to it and the information that is given to it to ensure that it can do its work. The decision clearly made by the Home Office was that this was not a matter that had to go before the committee. The committee was apprised of it as a matter of courtesy as that was thought to be right but, according to the Justice and Home Affairs Council, no procedure demanded that such a submission should be made. That was contained in the letter written by my right honourable friend the Home Secretary to the noble Lord, Lord Grenfell. I understand the sensitivity expressed by the noble Earl in that regard, but I assure him that no discourtesy or disrespect was intended by the process adopted on this occasion.

Photo of Lord Crickhowell Lord Crickhowell Conservative

I want to ask a question. I have listened with great interest to the exchange that we have had on very important issues. I hope that the noble Baroness will put the letter that she writes to my noble friend Lord Pearson of Rannoch in the Library or that she will make it available to those who have taken part in this debate. But I am not clear whether she has said that all the points covered by my noble friend's amendment are exactly as my noble friend said they should be. We have been so engaged on the issue of the Select Committee's exact position in Europe that I, for one, am confused. I simply want to know whether my noble friend's requirements are met and, in that case, is the Minister able to accept my noble friend's amendment?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I do not accept the amendment. The noble Baroness, Lady Anelay, rightly moved it to enable me to explain what was done by the Government in relation to inter-governmental procedure and decisions that were made at the Council. I thanked her warmly, I hope, for giving me that opportunity and I have sought to explain what has happened. I believe that I have answered all the questions that she raised; at the same time I tried to allay the concerns that were also raised by the noble Lord, Lord Pearson of Rannoch, and the noble Earl, Lord Caithness. I hope that I have been as comprehensive as I can be at a quarter past midnight.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Spokespersons In the Lords, (Assisted By Shadow Law Officers)

I am grateful to the noble Baroness and will of course consider her answers very carefully between now and Report to see whether there is any need to come back with this particular amendment, or whether my noble friends might consider an alternative. When it comes to expertise in these matters, I yield to my noble friend Lord Pearson of Rannoch. I am grateful to my noble friend Lord Crickhowell for pointing out that it would be helpful if the Minister's letter to my noble friend could be put in the Library.

My concern was heightened when I listened to my noble friend the Earl of Caithness explain how Sub-Committee F appeared not to have been kept as informed as perhaps it felt that it should, particularly when it seems that the Home Secretary had promised to keep it informed and did not do so. I am not party to any correspondence between the Minister's noble friend Lord Grenfell, who chairs that sub-committee, and the Home Secretary. That is also not relevant to my amendment and, therefore, I just note that I am sure that the noble Baroness has the highest regard for the sub-committee and will bring this matter to the attention of her right honourable friend the Home Secretary.

At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139 and 140 had been withdrawn from the Marshalled List.]

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at eighteen minutes past midnight.