My Lords, I beg to move that the Bill be now further considered on Report.
My Lords, I think that I have already spoken to this amendment. I beg to move.
moved Amendment No. 66:
Page 16, line 12, leave out "by the prescribed person in the prescribed manner." and insert "in the prescribed manner by the person specified in or determined under the regulations.
( ) The power of the Secretary of State under this section to provide information about an individual to another person is exercisable only where the provision of the information is subject to the satisfaction in relation to that other person of conditions imposed under subsection (3)(a) and (b)."
On Question, amendment agreed to.
My Lords, I am concerned about the confusion which may have arisen at the beginning of proceedings this afternoon. I am looking at the list of today's groupings provided by the Government Whips' Office, which clearly states that the first amendment in the name of the noble Baroness, Lady Scotland, has not been debated. Perhaps my recollection of debates over the past two days is somewhat hazy, but I had anticipated that the noble Baroness would introduce the amendment. I am a little concerned that we have not had the opportunity perhaps to welcome the amendment and for the House to understand what it is all about.
The confusion is most unfortunate. It may well be that we will have to return to the matter on Third Reading. Government Amendment No. 65 was the subject of a difficult debate on Schedule 9, and it is not a matter that we wish simply to pass over.
Amendment No.66A will be moved by my noble friend Lady Seccombe.
moved Amendment No. 66A:
Page 16, line 38, leave out paragraph (a).
My Lords, Amendment No. 66A would remove subsection (2)(a) from Clause 18. As the Explanatory Notes inform us, Clause 18 sets out that there may be no requirement on individuals by organisations to produce an ID card as the only acceptable proof of identity before a move to compulsion, other than in the circumstances set out in subsection (2). The Explanatory Notes go on to explain that the exceptions in subsection (2) include where there is,
"a specific requirement for a check on an individual's ID card or against the Register under Clause 15"— that is, the power to make public services conditional on ID checks—
"or in accordance with provisions under another enactment; where the organisation allows for reasonable alternative methods of proving identity; or when it is compulsory for the individual to register".
Paragraph (a) refers specifically to Clause 15 and provisions that may be made by another enactment. My fear is that this subsection could potentially catch individuals, private organisations and/or private businesses. It is one thing to require that access to all government-funded public services needs an ID check but quite another to impose on privately run businesses the need for compulsory ID checks, using this system, and, in turn, all the currently unknown costs that will go with that—for example, the cost of readers or of making requests to the system. In addition to imposing such costs, the subsection removes a degree of choice that businesses should themselves make regarding ID checks. I know that the Government disagree with this, but we should not be a nanny state.
The particular open-ended reference to the phrase, "in accordance with provisions made by order under any other enactment" is very far-reaching. No doubt the Minister will argue the need for flexibility. But what is to stop future enactments in theory from compelling something silly like a fairground owner checking everyone's ID card to make sure they are old enough to have a go on specific rides, be they too old or too young? Will the Minister offer to see what changes can be made to the legislation to ensure that none of the above will occur? What assurances can she give that subsection (2)(a) will not be used in this manner? I beg to move.
My Lords, I should like to make a comment about the proposed removal of the subsection by reference to Clause 15, to which it relates. I was hoping for some assistance from the noble Baroness to confirm what I think was said at an earlier stage, although I cannot remember which day it was as there have been so many. Clause 15 is important because it makes public services susceptible to being conditional upon someone having an ID card. Subsection (2) refers to the fact that regulations cannot, however, make that requirement effective with regard to public services provided free. The classic case would be someone getting National Health Service treatment. Clause 15(2) makes it clear that a citizen cannot be forced to have an ID card before he or she gets National Health Service treatment. The reference in subsection (2) is to public services provided free of charge.
The point was raised before, and I hope that the Minister will forgive me if I raise it again. I am sure that we all want to be quite sure, at virtually the last gasp, that, in considering this amendment and Clause 18, we do not inadvertently get wrong what may happen under Clause 15.
My question for the noble Baroness is this. If one goes to the chemist with a prescription from one's doctor, unless one is in one of the exempt categories—OAP, child, or certain other conditions—one pays a prescription charge. That would fall outside the exemption in Clause 15(2), which is only where the service is provided free. I apologise to the House for what must seem a complicated question, but unfortunately it is a complicated Bill and sometimes one cannot get around the complexities. I am anxious to ensure that we do not leave the Bill in a state where a hullaballoo arises hereafter because people who have to pay whatever the prescription charge is are suddenly told that they are not within the exemption to Clause 15(2) and asked to produce an ID card. That is the question that arises from the amendment, seeing that it will have a direct impact on Clause 15. I would be most grateful if the Minister would give us some light on the matter. I mentioned it to her officials earlier in the day, so I hope that it will not be such a bombshell as it might sound.
My Lords, the noble Baroness, Lady Anelay, is right in saying that government Amendment No. 65, which would have led into the conversation we have just had on Clause 15, would bite on this. For the House's clarification it might help if I explained how Amendment No. 65 fits in with the response I intend to make on her Amendment No. 66A, because the two go together. In doing so, I hope to deal also with the comments of the noble Lord, Lord Phillips of Sudbury, on free prescriptions, not least because he is talking about Amendment No. 33, which he moved on the first day of Report on
My Amendment No. 65, which was passed by the House, has the effect of preventing the information contained in paragraph 9 of Schedule 1, which is the audit log, from being provided under Clause 17 to public service providers. Noble Lords will recall that Clause 17 enables the provision of information to public service providers for the purpose of verifying the identity of a person who has applied for a service. As my amendment has been accepted, the audit log will no longer be provided under Clause 17. The amendment I moved and that was passed was tabled in response to the concerns raised in Committee by the noble Lord, Lord Phillips of Sudbury. I was grateful to him for raising that issue so that we could deal with it.
The noble Lord asked about prescription charges. His amendment would have given the individuals the option of whether an audit log should be kept of those occasions when an identity card is checked with the individual's consent under Clause 14. For the reasons that I gave earlier, which were recorded in Hansard, we believed that it would be wrong to allow the possibility of individuals deciding for themselves whether some checks against the register should be logged. If that happened, there would be no record to use in cases of complaint and it would mean that a fraudster trying to use someone else's card could insist that no record was kept of that transaction.
At the same time, we thought again about the second part of the noble Lord's amendment. I hope that we have made it plain that it is no part of our intention to compel people to produce ID cards for prescriptions that are free. I know that there was a debate about whether we would need to do so for ophthalmic and other issues—dental treatment was mentioned on the previous occasion—and I want to make it clear that it is not our intention so to do. We do not think that the noble Lord's concern is well founded.
I turn to the noble Baroness's Amendment No. 66A, which would remove paragraph (a) of subsection (2) of Clause 18. As noble Lords know, Clause 18 is designed to provide a general safeguard that in most circumstances people will not be forced to use an identity card to prove identity in advance of compulsion. Thus, in line with Clause 18(1), it would not be possible for, let us say, a bank or building society to require a customer to produce an identity card as the only acceptable proof of identity in advance of compulsion. The safeguard in Clause 18 still allows an identity card to be one of the methods accepted for proving identity, provided that a reasonable alternative method of establishing identity is also allowed. It would no longer apply once it is compulsory to register and to hold an identity card.
The words in Clause 18(2)(a) that would be removed by Amendment No. 66A serve a purpose. This subsection would allow a requirement to be imposed to produce an identity card in advance of compulsion if it had been imposed under Clause 15, which deals with making public services conditional on the production of an identity card or any other enactment. However, any regulations under Clause 15 would be subject to the affirmative resolution procedure, so Parliament would have the opportunity to debate and agree them. Moreover, as provided in Clause 15(2), any such regulation in advance of compulsion could not apply to the payment of benefits or to the delivery of any free public service. I hope that gives as clear a reassurance as the noble Lord, Lord Phillips of Sudbury, would wish for.
We should not rule out in future providing that identity cards be required to be produced if that is a condition of other legislation, which also would be subject to parliamentary scrutiny. Accordingly, we believe that the drafting of Clause 18 is satisfactory. I therefore invite the noble Baroness to withdraw her amendment.
My Lords, before the noble Baroness sits down, I thank her for her explanation of all these matters; they are scarcely simple. However, the language of Clause 15 is different from the policy that the Minister enunciated. She was clear about the policy, and I accept what she said. The problem is that the wording of Clause 15(2) does not follow the policy; it is wider. If one supposes different circumstances, a different Minister and a different government, then one does not have the reassurance that the Minister gave to the House. The classic case of a prescription for which a member of the public has to pay something would not fall within the exemption in Clause 15(2). Will the Minister think again about this before Third Reading, because it is an important point? It is not good law to include in a Bill a provision that is dependent on policy. Will the Minister come back with some wording that takes account of my point?
My Lords, I am certainly happy to look at the matter, but, as I said earlier, the safeguard exists through the affirmative resolution procedure. Any regulations for monitoring this situation would have to come before both Houses for debate and therefore be agreed in the way in which we have clearly set out.
I have also given the assurance that it is not our intention that the provision should operate in a way that would make an identity card compulsory for free prescriptions. I have given assurances also in relation to those other matters.
I hope that I have explained why we are unable to accept the wording of Amendment No. 66A of the noble Baroness, Lady Anelay, which was spoken to so eloquently by the noble Baroness, Lady Seccombe. I recognise that she was trying to find a safeguard against the enforced use of identity checks in advance of compulsion. She made that clear in the way in which she explained the amendment. In giving further consideration to Clause 18 safeguards, we are investigating the possibility that a loophole exists. The provisions in Clause 18 are designed to ensure that organisations cannot insist on production of an identity card as exclusive means of proving identity prior to compulsion unless, as we have already discussed, this has been required by an affirmative order under the required identity checks provisions for public services in Clauses 15 to 17 or in accordance with another enactment.
However, the clause does not deal expressly with the possibility of an organisation requiring a person to obtain a copy of their record held on the national identity register by exercising their subject access rights under the Data Protection Act or by making use of the proposed online facility to check one's own records. We should properly look at and tighten up all those things. However, if we do what I have indicated for Clause 18, I do not think that the noble Lord's concern about Clause 15 will be a problem, particularly bearing in mind the assurance I have given. Should we conclude that there is a need to tighten matters, we will return with a government amendment to Clause 18 at Third Reading. My officials will be in touch with the Information Commissioner's Office to alert it to the precise details of the amendment before it is tabled. I hope that by looking at Clause 18 we will be able to close any gaps that remain and that the noble Lord would be content with what we now have in Clause 15, limited as it is by the tightening that we hope to be able to do on Clause 18. I think that that meets the needs both of the noble Baroness and of the noble Lord as well.
My Lords, I thank the noble Baroness for explaining Amendment No. 65. We realise that it was an innocent error but felt that it was important that the reason for the government amendment should be put on the record. I would like to take the opportunity between now and Third Reading to read what has been said today about Amendment No. 66A and to see what does go down on the Marshalled List for that day. For now, I beg leave to withdraw the amendment.
moved Amendment No. 68:
Page 18, line 21, at end insert—
"( ) The Secretary of State must not make an order or regulations containing (with or without other provision) any provision that he is authorised to make under this section unless a draft of the order or regulations has been laid before Parliament and approved by a resolution of each House."
On Question, amendment agreed to.
Clause 20 [Prevention and detection of crime]:
My Lords, these are minor drafting amendments to Clause 20, which have been tabled in response to comments made by the noble Lord, Lord Phillips of Sudbury, to whom we are most grateful. I hope that these amendments satisfy him entirely. Of course, it is never entirely possible to satisfy the noble Lord, but we do our best. I can assure noble Lords that these amendments do not change the meaning or operation of the clause in any way. I beg to move.
moved Amendment No. 72:
Page 19, line 43, leave out "for being" and insert "to be"
On Question, amendment agreed to.
Clause 22 [Power to authorise provision of information in other circumstances]:
[Amendment No. 72A not moved.]
[Amendments Nos. 72B and 72C had been withdrawn from the Marshalled List.]
Clause 23 [Rules for providing information without individual's consent]:
moved Amendment No. 72D:
Page 20, line 35, at end insert "; and
(c) requiring the persons referred to in paragraph (b) to act reasonably and proportionately in providing information under sections 19 to 22"
My Lords, I can move this amendment very quickly. Clause 23, to which it refers, sets out the rules for providing information—that is, information from the national register—without an individual's consent. Therefore it is a singularly important clause. In subsection (2), the Secretary of State may make regulations to make those requirements of public authorities and of persons authorised by public authorities. My feeling is that the inclusion of the amendment would be extremely helpful at an important part of the Bill and would give clear guidance both to the many officials who have to construe this remarkably complex piece of law hereafter and, even more important, to the citizen who has to resort to it.
On many occasions in these debates, many of us have said that this is a citizens' Bill. It is not one of those technical measures that one knows will be resorted to only by professionals; potentially it will affect tens of millions of our fellow citizens. My amendment would require the persons referred to earlier in the subsection—that is, the public authorities—
"to act reasonably and proportionately in providing information under sections 19 to 22".
I am well aware that under the Human Rights Act there is an implied obligation in all circumstances, one can broadly say, for authorities—that is, public bodies—to act reasonably and proportionately. Therefore, it is legitimate for the Government to say in response to the amendment, "This is superfluous. Just trot along to the Human Rights Act and look at the relevant subsections and Bob's your uncle". Well, Bob is not my uncle because I do not know anything about the Human Rights Act. I do not want to be cast in that direction, but I do want to have at a hugely important point in the Bill a simple, clear statement that anyone who is asked to provide information under this clause—it can be highly sensitive information—will have to act reasonably and proportionately.
The other point that I draw to the attention of the House is that I have sought to avoid this obligation falling on the shoulders of the Secretary of State by the way in which I have worded the amendment. It would simply give the Secretary of State the power to make provisions requiring the persons who are to provide information to act in this way. So it cannot be argued that the state bureaucracy is unduly trammelled because at every turn it will have to make an individual judgment on every single individual provision of information. That will fall to the authority providing information to determine, as provided for by the amendment.
I hope that the Government will—as they do on occasions, it must be said—provide words which are implied by the Humans Rights Act or, indeed, that they will put in provisions that are not strictly necessary at all. Perhaps I may refer the noble Baroness, who is already looking sceptically in my direction, to Clause 16(6). It is a completely superfluous and unnecessary subsection but, as it is to give an impression which the Government assiduously try to implant in the public mind, it is included, although it is completely superfluous in literal, necessary terms.
I hope very much that the Government will—as, to be fair, they have done on one or two occasions—make an amendment to the Bill that has regard to the fact that it is Joe Bloggs who is affected by these provisions. We do not want to drive every person to a lawyer in order that they may understand where they stand, and the same goes for civil servants at all levels. I beg to move.
My Lords, I support the intentions behind the noble Lord's amendment, although I do not support the way in which he is going about it. I certainly agree with him that it is important that there is clarity in the Bill with regard to proportionality. Here, we are trying to get at the issue of good governance and to obtain from the Government reassurance that that will be pursued in these matters.
I understand what the noble Lord, Lord Phillips, is saying. It is implied here that one has the protection of the Human Rights Act, but that is an onerous way for the ordinary citizen to obtain redress. The question to which we are trying to get an answer from the Minister is as follows. If the amendment of the noble Lord, Lord Phillips, is not made, what other clear, simple mode of redress is there for the citizen who believes that those who acted on behalf of the Secretary of State had acted unreasonably and disproportionately? I am trying to pick my words carefully here. The reason why I do not support the noble Lord 100 per cent is that, as noble Lords will notice from the Marshalled List, my noble friend Lord Northesk has tabled a later amendment which approaches the issue from a different angle.
I understand what the noble Lord, Lord Phillips, is saying—that is why he has not put an immediate duty on the Secretary of State. When we are looking at a system that is being introduced by the Secretary of State, and there is an essential issue of good governance, it should be for the Secretary of State to take responsibility. I look forward to my noble friend Lord Northesk's introduction of his amendment, when we may, perhaps, be able to explore those issues in greater detail.
My Lords, it seems to me that the amendment is merely trying to define that the civil servants who will be giving out the information should act in a particular way; it leaves the Secretary of State to lay that down quite clearly. As good civil servants do not act ultra vires, and will tend always to follow the letter of what is laid down, I would have thought the amendment to be very sensible. It leaves flexibility, while at the same time making it quite clear that there is a duty for a civil servant to act in a particular way. I cannot see the disadvantage in this. A lot of people are very worried about some of the things that could be done under this Bill, and it seems to me that this is a very neat way of trying to allay some fears.
My Lords, I think that the noble Lord, Lord Phillips of Sudbury, foreshadowed my response to why this is unnecessary. I have to tell the noble Lord that Bob is my grandfather, my uncle, my brother and my nephew, so as far as that is concerned, we think that the Human Rights Act is enough here. I also need to say to the noble Lord, with reference to Clause 16, that it is not superfluous or meaningless: it imposes a duty to consult where regulations are made under that clause and there is an existing statutory duty under other relevant powers. It has some real function and is therefore significantly different from the measure suggested by the noble Lord.
I understand what the noble Lady, Baroness Anelay of St Johns, says about agreeing in essence; we too think it absolutely essential that there should be proper and good governance in this matter. The proposition that the powers under Clauses 19 to 22 must be exercised "reasonably and proportionately" derives from the Secretary of State's public law duties and the provisions of the Human Rights Act. As ever, we are most reluctant to reiterate obligations that already apply. The clear implication of doing so would be that without such wording it would be lawful for a power to be exercised unreasonably or disproportionately. I am sure that that is not what the noble Lord intends.
Aside from that, we unfortunately consider the noble Lord's amendment to be flawed, in that it seeks to place the duty to act reasonably and proportionately directly upon civil servants. As noble Lords are aware, under the aspect of our constitution often referred to as the Carltona principle, the Secretary of State remains accountable for the actions of his officials. Those actions are, constitutionally speaking, his actions, albeit carried out by his civil servants. If information were provided under Clauses 19 to 22 in an unreasonable or disproportionate way, it would be the Secretary of State who would answer for it.
Nevertheless, I recognise the sentiment behind the noble Lord's amendment; we are acutely aware that those individuals whose job it will be to provide information under Clauses 19 to 22 will have to be well trained in order to ensure that such disclosures are within the terms of legislation—that they are reasonable and proportionate. There will be guidance and procedures to this effect. The power to provide information without consent does not mean that the information must or should be provided whenever it is requested. We will make sure that procedures not only govern the way in which a request for information is made, but ensure that the information is provided only when the request is reasonable and proportionate.
I would, therefore, ask the noble Lord to withdraw his amendment. I very much take on board what the noble Lady says about making procedures clear, simple and available to members of the public. Indeed, we have sought to do that with administrative law generally, making it easier for people to challenge and, by the way in which they challenge, enabling us to be sure that they are taking full opportunity to do so.
My Lords, I am thankful for the Minister's remarks. To clear up one legal point that she raised, I beg to differ with her on the Carltona decision and the reference in the relevant clause to civil servants. I do not believe that "persons" here refers to individual civil servants. It is a reference to the persons referred to in Clauses 19 to 22, which are authorities, not civil servants. But let us leave that little joust aside and get to the nub of the matter, which is that the Minister is sympathetic to but unmoved by my desire to have this made plain in the Bill. I cannot at this stage do more than withdraw the amendment, but I shall speak to the Minister between stages, because I am terrier-like in my wish to make the Bill more sympathetic to the layman. I beg leave to withdraw the amendment.
moved Amendments Nos. 73 and 74:
Page 21, line 6, leave out "by the prescribed person in the prescribed manner" and insert "in the prescribed manner by the person specified in or determined under the regulations"
Page 21, line 17, at end insert—
"( ) A power of the Secretary of State under any of sections 19 to 22 to provide information about an individual to another person is exercisable only where the provision of the information is subject to the satisfaction in relation to that other person of conditions imposed under subsection (4)(a)."
On Question, amendments agreed to.
My Lords, the amendment seeks clarification from the Minister on an issue that I first raised in Committee on
Clause 1(6) was added by the Government without debate, because the guillotine prevented it. It was added in good faith by the Government to meet objections that had been raised in another place by the Minister's honourable friends. Their concern and that of Members throughout the House was that the drafting of Clause 1 meant that the database could contain sensitive personal data. The main concern had been that medical and criminal records could be added to the national identity register.
After Committee, the Minister wrote to me to explain why the Government believed that their drafting of subsection (6) remains benign. But she admitted in that letter that there cannot be a complete exclusion of information tending to reveal sensitive personal data from the registrable facts at Clause 1(5) because a photograph or nationality may of itself tend to reveal such data as racial ethnic origin, which is covered by the Data Protection Act 1998. But she argued that that is information that everybody would expect to be on a register. That sounds like common sense, but she will understand that I remain a little uneasy about the position on sensitive data and, like the noble Lord, Lord Phillips of Sudbury, I believe that this Bill changes the relationship between state and citizen so much that it is the duty of all of us to ensure that we get it as right as possible for the citizen.
The reason why I brought back this amendment, for clarification only, is that I believe that it will be consistent with the position that the Government have taken in the Minister's letter. It would simply ensure that the Secretary of State could not process sensitive personal data that were covered by Section 29 of the Data Protection Act 1998. Will the Minister give me a clear assurance that that is the position that the Government intend to adopt in the setting up and running of the national identity register? I hope that she will explain why she feels that it would not be better to have this in the Bill. I know that she will attempt to do so; let us see if she manages to persuade me. I beg to move.
My Lords, I shall be very happy to seek to do so. The noble Baroness is right to refer to the content of the letter and the reasons we have set out. It is important just to run through what "sensitive data" means, because it emphasises why a photograph could arguably be sensitive data. I say "arguably" because people tend to fall on both sides of the argument. Some say that it is not sensitive data—it is just a photograph; whereas others say that it is sensitive data. That is what causes us the difficulty.
Some noble Lords may not be familiar with the definition of "sensitive data", so I shall remind the House what it is. It is the racial or ethnic origin of the data subject; his political opinions; his religious beliefs; whether he is a member of a trade union; his physical or mental health; his sexual life; the commission or alleged commission by him of any offence; any proceedings for any offence committed or alleged to be committed by him, and the disposal of such proceedings or the sentence of any court.
It is clear to those noble Lords who are now familiar with Schedule 1 to the Bill that the register will not contain substantive information falling within any of those categories. Moreover, any addition to the list of information in Schedule 1 would have to be consistent with the statutory purposes, which in effect rules out any possibility of adding, for example, medical or criminal records. However, as I have indicated, it is arguable that information that is in itself innocuous is in fact sensitive personal data within the DPA definition. For example, a photograph may reveal someone's racial origin or indicate a particular disability or religion, perhaps because they are wearing a capel, a turban or something of that sort.
So one sees why the debate over photographs comes about. I am sure the noble Baroness is not seeking to prevent the provision of photographic information from the register without consent; for example, to the police under Clause 19(3)(b) for the detection of a crime, and that could quite possibly be the effect of Amendment No. 74A. For the reasons I have given, I hope she will feel comfortable about withdrawing it. I understand perfectly why, in the normal way, the issues that would fall within "sensitive data" would be excluded. If there were not an argument about the photograph, I would have been happy with the amendment, but there is. There will be those who say the photograph clearly identifies a number of those issues, and that is our problem.
My Lords, I am grateful to the Minister. As I explained, this was for clarification. Most people who have not been involved with every line and word of this Bill would have thought a photograph could not bring offence by bearing sensitive personal data, but people have written to me who are concerned that a photograph, as the Minister has just said, could reveal their religion, which might mean they would be discriminated against in certain circumstances. I entirely understand what she says with regard to why photographs must be included in this—an identity card would not function effectively were they not. I appreciate that there is a crossover with the Data Protection Act, and there have been some complications as a result. I am grateful to her for making further clarification on the record, and I would not return to this on Third Reading. I beg leave to withdraw the amendment.
moved Amendment No. 75:
Page 21, line 19, leave out "authorised" and insert "that he is authorised to make"
On Question, amendment agreed to.
moved Amendment No. 76:
After Clause 23, insert the following new clause—
(1) Notwithstanding the provisions of sections 11 and 19 to 23, the Secretary of State has the following specific functions in respect of the disclosure of information—
(a) to draw up and disseminate to the persons and bodies to whom sections 11 and 19 to 23 apply, guidance as to the disclosure of information between and amongst themselves in a proportionate and necessary way;
(b) to draw up and disseminate to the persons and bodies to whom sections 11 and 19 to 23 apply, guidance as to the circumstances in which it is appropriate for those persons and bodies to disclose information between and amongst themselves in a proportionate and necessary way;
(c) to maintain under review the guidance set out in paragraphs (a) and (b).
(2) In drawing up the guidance set out in subsection (1)(a) and (b), and in reviewing such guidance under subsection (1)(c), the Secretary of State shall consult—
(a) the National Identity Scheme Commissioner;
(b) the Information Commissioner;
(c) such other interested persons and bodies as the National Identity Scheme Commissioner sees fit.
(3) The guidance under subsection (1)(a) and (b) shall in particular make provision as to—
(a) the nature of the information that must or may be disclosed;
(b) procedures designed to ensure the proportionality and necessity of the process of information disclosure;
(c) procedures designed to ensure the accuracy and security of information disclosed;
(d) procedures designed to ensure, where appropriate, the co-ordination of the disclosure of information between and amongst relevant agencies and persons in a proportionate and necessary way;
(e) procedures designed to guarantee, as appropriate, the rights of data subjects in respect of any information about them that may be disclosed;
(f) procedures designed to govern the period for which it is appropriate that information should be disclosed and to ensure appropriate deletion of any information disclosed in compliance with the data protection principles.
(4) This section applies to the persons and bodies identified in sections 11 and 19 to 23 and, as appropriate, any agencies, companies or individuals who may be contracted to work for them or to supply goods and services to them.
(5) The Secretary of State may by regulations subject to affirmative resolution in each House of Parliament proscribe and penalise contravention of any guidance under this section as to collection, sharing, use, holding and disclosure of information."
My Lords, as your Lordships will be aware, we debated this somewhat late in the day in Committee. I hope, therefore, that I may be forgiven for returning to the issue today, although happily I need not weary the House with a detailed explanation of its purpose, which is straightforward: namely, to propose that the Secretary of State draw up statutory guidelines in respect of the information disclosure provisions of the Bill, with the intention that these be enforceable in law. I have been consistent in my pessimism about the Government accepting the amendment, on the basis—and here I echo an earlier comment of the noble Lord, Lord Phillips—that it will be argued it is unnecessary because the Human Rights Act and the Data Protection Act will apply to this legislation in any event. The Minister made that case in Committee. Indeed, when I sought to amend the Children Act 2004 in a similar way, my efforts were rebuffed for the same reason, although it is perhaps worth noting that at that time the noble Baroness, Lady Ashton, replying for the Government, made the point:
"We are clear that comprehensive statutory guidance is needed".—[Hansard, 15/7/04; col. 1431.]
That was buttressed in the 19th report of the Joint Committee on Human Rights, which observed:
"We welcome the Government's acceptance of the need for comprehensive statutory guidance on information sharing, in response to an amendment proposed by" myself, and supported by the noble Lord, Lord Campbell of Alloway. It may be somewhat presumptuous of me, but I infer from that that at least some elements of the legislative process have sympathy with my purpose here.
That aside, revelations in respect of a number of related matters over the past few weeks have reinforced my conviction that some form of additional protection for the public in this area is essential. First, your Lordships will of course have noted the recent disclosure that some 24,000 young people aged between 10 and 18 are having their DNA profiles routinely stored, despite the fact that they have never been charged or cautioned for an offence. That is a matter that the noble Lord, Lord Phillips, raised in a Starred Question last week. The structure of the Bill, as I have repeatedly argued, allows a great deal of cross-pollination between the national identity register and other government databases. It is entirely possible that the ID card scheme could in the future be used to cross-reference DNA data. Evidently, that flies in the face of the assertions that the Minister made on the point throughout our scrutiny of the Bill.
We all understand that there are legitimate, perhaps even virtuous, arguments in favour of the utility of databases storing DNA profiles. However, it is essential that their establishment should not happen, as it were, by stealth, but should be subject to open and transparent parliamentary debate. Certainly this matter would seem to argue in favour of the new clause, the more so given that there have been indications that the Home Office may be in the process of reviewing its retention and deletion policy in this area.
Secondly, your Lordships will also have noted the front-page story in a recent copy of the Times revealing that three chief constables have won a landmark appeal to the Information Tribunal against the Information Commissioner. As a result, from April this year, records of all criminal convictions and cautions, however minor, will remain on file pretty much indefinitely. Again, we can all accept and recognise the efficacy of using such data within databases for the prevention and detection of criminal and even terrorist activity. Nevertheless, as a non-lawyer, I cannot square the circle retaining data— albeit "available to police eyes only"—for 100 or so years and the fifth data protection principle, which states:
"personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes".
There is also the announcement from the Home Office Minister, Andy Burnham, that ID cards will,
"incorporate a 'contactless' or 'proximity' chip", reliant on RFID—radio frequency identification. The fact is that this technology can be and is used to track the location and movement of items in which it is embedded. ID cards would effectively come with a built-in facility permitting knowledge of the whereabouts of the holder for every second of every day. That is an especially pertinent issue regarding the security of the scheme. All those developments persuade me that, however persuasive the Minister may be in arguing the case, the comfort and security afforded by the Data Protection Act are far from adequate.
In Committee, the Minister suggested that an argument against the new clause is that,
"what is lawful for [recipients of information] to do with it will depend on each recipient's own common law and statutory powers".—[Hansard, 14/12/05; col. 1355.]
In other words, it will be difficult to codify the Bill's disclosure of information provisions because they stretch across such a wide variety of agencies. To my way of thinking, that makes it all the more necessary to do so. It is precisely because current arrangements for disclosure are such a mishmash that guidelines, statutorily based and enforceable in law, are unnecessary. Such a codification should reflect the different approaches adopted by different agencies, thereby creating greater transparency of the regime. Merely because such a task might be difficult should not in any way militate against it being done.
In fact, the new clause buttresses a central recommendation of Sir Michael Bichard's inquiry into the Soham murders. Recommendation 8 of the report states that, in respect of police IT systems:
"A Code of Practice should be produced", which, in the words of Recommendation 9,
"must clearly set out the key principles of good information management (capture, review, retention, deletion and sharing), having regard to policing purposes, the rights of the individual and the law".
The Home Office's progress report of last month identifies that the full set of guidance recommended by Sir Michael Bichard was available as of October last year. To that extent, the new clause—in so far as it applies to Clauses 19 and 20—is entirely consistent with the policy imperatives being pursued by the Home Office. Indeed, while it is idle to speculate, it is conceivable that much of the recent controversy about List 99 and the sex offender register might have been avoided had the new clause, or something like it, already been properly implemented. Dare I say it, but, viewed from this perspective, the Government should be minded to approach the amendment with a healthy measure of sympathy.
I add a few thoughts about this, in part reflecting some of the observations of the noble Lord, Lord Phillips of Sudbury, last week. The Home Office has announced, almost with pride, that 7 per cent of the UK population will have their DNA profiles stored in two years' time, thereby reinforcing the UK's position as the world leader in the practice. For example, this compares with the EU average of 1.13 per cent and 0.5 per cent in the United States.
Some 20 per cent of the CCTV cameras deployed in the world are to be found in the UK. Under the current Administration, the UK population has become subject to greater state surveillance than almost anywhere else in the world. This necessarily begs the question of whether the rights and protections of our citizens in this area have kept pace with what some might be tempted to call the Government's infatuation with snooping. There are legitimate reasons for supposing that the powers of the Information Commissioner and associated legislation such as the Data Protection Act 1998 are proving ever more inadequate, as perhaps exemplified by the decision of the Information Tribunal to which I referred earlier.
By the same token, it is perhaps worth reminding ourselves that the Information Commissioner has had just cause in the past to bemoan an absence of appropriate enforcement powers. The new clause is therefore intended to offer some redress in this area.
In conclusion, I repeat my assertion that the new clause or something like it is necessary to act as belt and braces to the Human Rights Act 1998 and the Data Protection Act 1998, and to give both the national identity scheme and information commissioners adequately sharp teeth. As my noble friend Lord Crickhowell pointed out in Committee, it would go a long way towards mitigating many of the anxieties that many of us have about the Bill. I beg to move.
My Lords, I support this amendment; if I had been a bit more organised, I would have added my name to it. As I have stated before, we need greater protections in this Bill to ensure that the "Big Brother" culture does not get out of control.
I have sat in on many debates on government data-sharing in various organisations to which I belong at which people from various government departments have been present. It is clear that no one is exactly sure what is allowed and what is not. There are also a lot of data-sharing initiatives which I am not sure would, strictly speaking, be permitted under the Bill.
Oversight of all this data sharing by the office of the Information Commissioner is essential. We know, however, that that office is underfunded and overloaded—particularly since the Freedom of Information Act 2000. It is clear that many government departments do not know when they should be referring to the Information Commissioner. By embodying that in the Bill, we will make it much clearer to government departments what they should be doing, who they should be consulting and how.
I was thinking of trying to introduce a privacy impact assessment clause into this Bill. When I read the amendment, however, I decided that this was probably a much better way of going about it, which is why I support it. The old argument that we should not worry because we have got the ECHR and all the human rights bodies out there holds no water. How are you to get a case together? Who is going to bring it? How does a citizen do that? It is unworkable; people feel powerless.
For example, there is a lot of talk about the fact that local authority valuation officers will be allowed to come into your home and photograph the interior, which has all sorts of privacy and security implications. A lot of people are very concerned about that. They would like to take it to the European Court of Human Rights. My attitude has been to wonder where is the legislation that permits this. They have been clearly told that this is going to happen.
My Lords, I hate to interrupt the noble Lord, but I made it plain in answering a recent Question in your Lordships' House that the proposition which the noble Lord sets out is complete nonsense. Photographs are only ever taken by valuation officers with the express authority of the occupier.
My Lords, I thank the noble Lord for that reassurance. I hope that someone out there reads it and publishes it in the press, for there are still many concerned citizens who believe that the previous story is correct and are wondering what they can do about it. That feeling of powerlessness among the people is significant, and I am glad to have had that proposition knocked on the head.
However, the feeling about ID cards will be the same, which is why I used that example. I was pretty certain that it could not be done, but most of the public out there were not and did not know how to find out. A provision such as this is essential so that the public know that they are protected and know where to go to find out whether the protection is working. That is why I heartily support the amendment.
My Lords, on the question of protecting the public, one should be seriously worried about the desire of the Government to stick their beaks into absolutely everyone's business, for no reason other than idle curiosity. Together with that we have a series of crashingly incompetent computer systems. A report in the Times today says that the whole tax benefit computer system is simply not working. We have had reports that the Inland Revenue computer does not work and that the computers holding the records of National Health Service doctors do not work.
Not only do we have a nosy Government, but one who insist on putting everything on computer and are then incapable of making those computer systems work—except at three times the cost which was originally budgeted. Even then, they are probably still not making them work. It is very depressing. The noble Baroness may laugh and smile gently at a description that might be mildly hyperbolic, but it is exactly what people out there think. There is too great a track record for it to be laughed off as crying wolf.
My Lords, one thing I know about my noble friend Lord Northesk is that he has, over many years, been thorough in the extreme. He probably does more research on the issue than the entire Home Office put together. However, that said, I sometimes find it quite difficult to understand exactly what he is saying—and that proves to me how extraordinarily complex the issue is.
I suggested in one debate last week that we should look at the German legislation on data protection, which made it absolutely impossible for any government department to share data with anyone else, or for the butcher to pass on the names of customers. While sitting with a glass of wine or two and talking to my friends around the world over the weekend, for a bit of fun I tried to access the 22 countries who are members of the EEA—those whose people are effectively allowed to travel at present into this country with an identity card. I sought to see whether I could harmonise the data on that identity card, and which countries had legislation which would mean approving the sort of legislation which we are introducing today. I had these sorts of comments, some from politicians and some from others; "You cannot be serious!"—that was one—or, "You cannot be doing such a thing in a country with greater liberty than anyone else". There must be some form of protection.
This morning, I had a sudden knock on my door to ask whether I would support a CCTV camera in the lane. There were several others with new houses who wanted them and they were asking me—because they had heard that I occasionally came to this place—whether I could tell them what the law was in relation to the data. The discussion—with some of a Lebanese nationality, or British; I use the word "nationality" guardedly—went that they were worried about doing the wrong thing if they put up a CCTV camera to record information. Some cameras can record for nine months on a single disc, and we discussed who that information belonged to. Would the state have access to it, or would they? Where was the intellectual property?
Going over that in time, I concluded that we are either a bright spark leading a light in the wilderness, and doing the right thing, or—as I tend to believe—we are doing totally the wrong thing. I therefore support my noble friend and hope that he will press this amendment.
My Lords, I seek clarification on the relationship between identity cards and various government departments. On the "Today" programme on
"We have a process where we begin voluntarily linking it to the passport and possibly CRB check in the event of a decision by Parliament".
If this goes forward and we talk about voluntary linking to passport and CRB records, has any thought been given to the impact that that will have upon volunteers? It would appear that in order to get CRB clearance, volunteers in any organisation would have to purchase their own ID card before they can volunteer for whatever they wish to do. In the interests of encouraging volunteering, that is surely not the way we would wish to go.
My Lords, the noble Earl, Lord Northesk, has tabled a practical amendment that gets to the heart of the principal area of concern about the Bill as a whole, which is how, and under what circumstances, sensitive information can be disclosed. As the noble Earl said in moving the amendment, given that we have a mishmash of provisions in the Bill—that is no one's fault but just a function of a highly complex piece of legislation—there is every reason why the Secretary of State should have the practical task of pulling it all together and putting out guidance. Guidance is guidance; it is not law. However, it would be extremely helpful to those who will have to work this huge, complex bundle of rights and obligations and to those citizens whose information is collected and disclosed. I should have thought that that is totally with the flow of what the Government have been saying all along and the messages and the policy assurances that the Minister has regularly given. I do not see that this amendment does anything but support—in a sense, buttress—all that. It will provide a single place in which civil servants, the public and public authorities can see set out comprehensively what disclosure means and the reasonable limits that should surround it. I hope that this amendment will appeal to the Government.
My Lords, my noble friend Lord Northesk rightly said that I gave strong support to him on this issue when we last debated it. I take this opportunity to say that my feelings are exactly the same today. Indeed, the more I hear of the complexities that have been described to the House by, for example, my noble friend Lord Selsdon, the more certain I am that we need the clearest possible guidance to be given comprehensively in a way that will give comfort, reassurance and understanding to the citizen. Our prime interest in all this should be the protection of the citizen and his rights, which is a subject that I shall come back to on later amendments.
My Lords, I congratulate the noble Earl, Lord Northesk, on tabling this amendment. I should have thought that the Government would consider it to be very helpful. We have heard a good deal about the surveillance society. It is very much with us, and will be with us a lot more when the Bill, and other Bills to come, are passed. I feel quite sure that when Orwell wrote 1984, he did not envisage that this country would be the sort of country he wrote about. He would have been quite horrified if he had realised that eventually we were going to have a compulsory register and compulsory identification cards for every citizen in our land. I believe that he did not think that that could possibly apply in Britain. But, of course, here it is—and it is applying.
The Minister has told us very often that the proposals in the Bill have the overwhelming support of the British public. I do not believe that is true. It may be that a focus group has come up with 72 per cent in favour, but I can assure her that the conversation on the buses—I do not know whether she ever goes on the buses—and my postbag tell me that there is a large opposition to this measure. The more people know about it and the more people begin to understand what is at stake, the less they like it. Indeed, Swindon Borough Council, I am glad to say, passed a resolution last week against the imposition of identity cards and an identity register.
There is much that should concern us about the Bill. The good thing about this amendment is that it will at least give some reassurance to those people who are concerned that their individual liberty and their individual circumstances could be affected by the Bill, particularly when the register and the ID cards become compulsory.
My Lords, I support my noble friend's important amendment, which gives practical clarity to the provisions governing the disclosure of information. He has done so against a background of reminding us of some of the concerns that there are currently in this country about the way in which information may or may not be disclosed. Where it is right for information to be disclosed, we are all concerned to ensure that, for example, children in vulnerable situations are protected. But there is some confusion on these matters.
I am grateful to the right reverend Prelate the Bishop of St Albans for asking the question that he did. I know it gently drifted away from the amendment but I hope the Minister will be able to respond to it. I listened to the same radio broadcast as the right reverend Prelate and it struck me then that the Home Secretary was taking a rather different stance from that which is being presented to us here. In front of us we have a Bill which is intended to link from the word go the passport to ID—initially compulsorily—when you apply for a new document. I tabled amendments at the Committee stage which probed the issue of how soon the driving licence would come in as the designated document.
But this is the first time that the Home Secretary has mentioned in one breath the passport and in the next breath the Criminal Records Bureau, forgetting all the rest. That is a cause for concern and I understand exactly why the right reverend Prelate mentioned that against the background of the importance of volunteering. So, although he was drifting away from the amendment, it was an important point to make.
My noble friend has argued his case with devastating logic and it would not be right for me to go over the arguments again in detail. As my noble friend said, it is important to have something which acts as a belt and braces for the Human Rights Act and the Data Protection Act and gives the National Identity Scheme Commissioner and the Information Commissioner sharper teeth. The amendment does so in a very sensible way.
My Lords, I have listened with great care and interest to all the comments that have been made. I think it is wonderful when one has four Earls speaking to one amendment. I commend them for that if nothing else.
If one looks at the matters that have been spoken to in relation to the amendment, one finds that two issues have been conflated, so let me separate them out. The first issue concerns DNA, and the other concerns the use to which it should be put in relation to ID cards. I hope that I have made it clear throughout our debate that DNA is not included in Schedule 1 and therefore cannot be stored on the register. Nor are there powers to take DNA samples.
To put the matter entirely beyond doubt, I am happy to tell your Lordships that the Government intend to bring forward an amendment at Third Reading to limit the registrable facts under Clause 1 to external characteristics, which is something that we debated long and hard when the matter was raised—by the noble Lord, Lord Phillips of Sudbury, in particular—in relation to how to differentiate between internal and external characteristics. The issue of a future government was raised by the noble Earl, Lord Northesk—I am constantly being told that I am very benign—as a way to undermine my argument. A future government would be prevented from adding DNA to the information that might be added to Schedule 1 by affirmative order. I hope that we can put the debate on DNA to bed. It will not be part of this Bill.
I can tell the noble Earl, Lord Northesk, that it is not right to suggest that the provisions in the 2001 and 2003 Acts have been unmerited in any way. I hope that the noble Earl was present when I said that more than 3,000 cases have been identified as a result of that material, including rapes and murders. One that stands out in my mind is a 20 year-old offence of the rape and murder of a 14 year-old girl, which was discovered as a result of a minor offence being committed some 20 years later. We are not saying that DNA has not some significance, but DNA and ID cards should be separated.
Before continuing, I should mention the suggestion that the Secretary of State should issue the guidance. I confess to being a little surprised, given the trenchant criticisms of the Home Office during our debates on the Bill, that noble Lords would want my right honourable friend the Home Secretary, or his successors in title, to be responsible for guidance on information sharing to all public authorities. That is surely the function of the independent Information Commissioner and should be properly dealt with in that way.
On the issue of contactless ID cards raised by the noble Earl, Lord Northesk, I should make it clear that it is currently planned that an ID card will be valid for travel within the EEA. As a result it must comply with the standards established by the International Civil Aviation Organisation. Thus, all countries are considering this very same matter. Standards stipulate that a travel document, such as an ID card, will have to have a contactless or proximity chip. It will require the card to use radio frequencies to allow the card to be read at very short distances of approximately 0 to 2 cm from the reader. That is somewhat similar to the Oyster card used on London transport. To prevent the information on such chips being read at a greater distance, the card will implement basic access control, which requires that the machine readable zone—the MRZ—printed on the face of the card is scanned and the information then used to unlock the read and request data from the chip.
As with e-passports, which the UK Passport Service is beginning to issue from this year, an attempt to read the chip without using the information printed on the MRZ to unlock it will yield no data that can be used to identify an individual. The worry of the noble Earls, Lord Erroll and Lord Northesk, is not merited. The conspiracy theory that the noble Earl, Lord Northesk, seems to be promulgating about the style of tracking will not occur.
As for CCTV cameras, I very much take on board the issue raised by the noble Lord, Lord Selsdon. It amplifies how many of the public want to have better protection and want the facility of CCTV cameras. Indeed, we know that they are extremely useful in the detection of crime, not only in relation to terrorists but in identifying recent criminal offenders. None of that bites on this.The noble Earl's amendment would require the Secretary of State to draw up and disseminate guidance to recipients of information from the register relating to disclosure of that information between and among them.
The noble Earl stressed the importance of data protection and we do not disagree with him. However, the amendment, notwithstanding the fact that it is supported by a number of noble Lords, is misguided. It seeks to give the Secretary of State a role which is more appropriately fulfilled by others, as I have already indicated. Guidance on onward disclosure would necessarily relate predominantly to the legal position. The extent to which, and the circumstances in which, onward disclosure of information by a person who would have received it under these clauses would be lawful would depend on the statutory or common law powers of that particular person and the application of various restrictions from the Human Rights Act through the Data Protection Act to common law duties of confidence. The noble Earl was right to remind your Lordships that I made those points when we last discussed this.
The police have powers which are different from those of the security agencies, which are in turn different from those of government departments. Recipients of information from the register will no doubt take advice from their respective legal advisers on disclosure of information, wherever that information is derived from. It is not appropriate for the Secretary of State, in exercising his functions under the Bill, to be under an obligation to provide what would amount to detailed and tailor-made legal advice to a wide variety of people, all of whom are already getting that advice from its proper source.
Subsection (3) of the amendment provides that the guidance produced by the Secretary of State would in particular have to deal with matters such as the security of information and the period of retention. Those are exactly the kind of matters which are governed by the Data Protection Act. In so far as the noble Earl is proposing that guidance should be given in complying with the obligations which derive from the Act, I gently remind him of the primary duties of the Information Commissioner, which are set out in Section 51 of that Act. The first two subsections provide:
"(1) It shall be the duty of the Commissioner to promote the following of good practice by data controllers and, in particular, so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers.
(2) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about the operation of this Act, about good practice, and about other matters within the scope of his functions under this Act, and may give advice to any person as to any of those matters".
Those are the commissioner's proper functions.
I take this opportunity to remind the House of some of the safeguards for which the Bill makes provision in relation to those to whom information may be provided from the register. Clause 24(2) requires the National Identity Scheme Commissioner to keep under review the arrangements made by those who can be provided with information from the register for obtaining, recording and using the information. Furthermore, as a result of government amendments, accreditation for organisations provided with information under Clauses 19 to 22, which are not specified in the Bill, will be compulsory. Finally, under Clause 26(2), the Intelligence Services Commissioner is empowered to keep under review the acquisition, storage and use by the intelligence services of information recorded in the national identity register as well as the provision of that information to any member of those services.
I hope that I have been able to persuade the noble Earl, Lord Northesk, and other noble Earls who have spoken, together with the noble Baroness and the noble Lord, that to include this further obligation on my right honourable friend or his successors in title is not necessary. Advice on the circumstances in which disclosure would be lawful is that it really is not an appropriate matter for the Secretary of State. It would be tailor-made to each recipient, having regard to the statutory and common law regime surrounding the recipient.
It is quite clear that it is better for the commissioners to do this job—they are better placed to do it independently and thoroughly, with the appropriate rigour and vigour—than it would be to ask my right honourable friend the Home Secretary simply to duplicate all that work. For those reasons, I hope that the noble Earl will withdraw his amendment.
My Lords, I am grateful to the Minister for her response. I am also grateful to all noble Lords who have spoken, not least for the level of support that the amendment inspired. As others indicated and I sought to demonstrate in my introduction, my aim here has always been to offer assistance to the Government. I was particularly struck by the comments made by my noble friends Lady Anelay and Lord Crickhowell. They both correctly identified the utility of giving the public—those on whom the ID cards scheme will primarily impact—clear, concise and transparent information about their data. That can only engender better and greater acceptance of the scheme.
I hear, accept and understand the Minister's comments on DNA. In my introduction, I was content to reflect on the usefulness of it in the detection and prevention of crime. I will not be tempted down the route of explaining why virtually it is possible that the register may have access to DNA—that would become too complicated and it would bore your Lordships to tears.
With regard to RFID, I merely point out that the chips in biometric passports in Holland have already been forensically hacked from a distance much greater than a few centimetres and decrypted within a matter of hours. In other words, that technology is insecure and raises severe data protection issues. With regard to the Secretary of State's role, interestingly, the noble Baroness, Lady Ashton, used the reverse argument when we were debating the Children Act. She maintained that the Secretary of State should have responsibility in this area. I suggest that the Government cannot have it both ways depending on which legislation is under consideration. Because my intent with the amendment was to assist the Government, more in weariness than anything else, I should test the opinion of the House.
My Lords, there have voted: Contents, 155; Not-Contents, 155. There being an equality of votes, in accordance with Standing Order 57, which provides that no proposal to amend a Bill in the form of which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
My Lords, after that excitement, I beg to move this short amendment, which would make the Information Commissioner appointable by the Crown on the recommendation of the Secretary of State, rather than by the Secretary of State alone. In Committee, we discussed a number of amendments designed to give more independence to the commissioner in carrying on his or her work. Most of that work will be with regard to public authorities.
Indeed, in moving the amendment, I could do no better than to take over wholesale the arguments advanced by the noble Baroness, Lady Scotland of Asthal, for resisting the previous amendment. Noble Lords may remember that the proposal of the noble Earl, Lord Northesk, was for the Secretary of State to have responsibility for issuing guidance and so on. The noble Baroness said that that was monstrous, completely improper and unsuitable. She said that the commissioner should have those powers because much of the work is to be done by departments of government and therefore it would surely be more appropriate for the commissioner to have the powers. I say, "Hear, hear". That is right in every particular, and apparently your Lordships agreed with the noble Baroness because they failed to approve the amendment.
The powers under the Bill relating to the commissioner are absolutely critical. It is plain—is it not?—that there is a great deal of anxiety in this place and in the country about the prospects of disclosure of information not following the lawful courses provided for by the Bill, leading to inadvertent disclosure of highly sensitive information. Indeed, it is fair to say that there is a great deal of anxiety about the Bill in all its aspects. While it is our duty to make the best of it, I believe that this modest amendment will give the commissioner a little more distance in terms of his or her relationship with the Secretary of State.
We have tabled a later amendment, which would require the commissioner to report to Parliament rather than to Parliament through the Secretary of State. I hope that, when we reach it, the amendment will be accepted or voted upon affirmatively. But, for the time being, Amendment No. 76A deals with the appointment of the commissioner. It is just worth mentioning that Clause 24(2)(a) describes the function of the commissioner as keeping under review,
"the arrangements for the time being maintained by the Secretary of State for the purposes of his functions under this Act".
There is a great deal more of that type of obligation. As I said, it is another vivid example of how the relationship between the commissioner and the Secretary of State is apt to be extremely sensitive and important, and therefore it must be desirable to provide a little more distance and independence in relation to the appointment of the commissioner. With those few words, I beg to move.
My Lords, in the later group to which the noble Lord, Lord Phillips of Sudbury, referred I will be saying rather more about the important issue of independence and the need to have a strong and robust commissioner who, if necessary, can stand up to the pressures that may be placed on him. I must confess that I cannot recall whether, when I became chairman of the National Rivers Authority, I was appointed by the Crown, the Minister of Agriculture or the Secretary of State for the Environment. Certainly I was answerable to the last two but I think that my authority succeeded in being robustly independent.
I will have something to say on the later group, but now I will simply say that I believe that the principle being addressed in the amendment—that the commissioner must be the strong protector of the citizen; again, I go back to using the word "citizen"—is so important that anything we can do to support and strengthen it should be backed by the House.
My Lords, I add my support to this amendment, moved with such commendable brevity. I think the important point is that the noble Lord, Lord Phillips of Sudbury, is proposing a method by which the authority of the Secretary of State would not be compromised, but the position and independence of the commissioner would be enhanced. As my noble friend Lord Crickhowell said, that is exactly what we are trying to achieve as well as ensuring that there is a champion for the citizen throughout this procedure—somebody who will be able to stand up to the Secretary of State. The Minister may, I think as a result of some murmuring I heard from him a moment ago, be about to ask whether it really matters, because people will not particularly understand the difference. I see the Minister shaking his head; I am glad that he is not going to take that tack. The importance will be seen by Parliament and by the person appointed as commissioner. If they are appointed by the Crown, it gives them that "stand back" position, that extra position of authority and impartiality, which would be welcome.
My Lords, the noble Lord, Lord Phillips of Sudbury, and other noble Lords have very adequately set out what they seek to achieve. Noble Lords will be aware that there are a variety of different statutory commissioners, some appointed by Her Majesty, some by the Prime Minister and some by the Secretary of State. Among the commissioners appointed by Her Majesty, there are those, including Her Majesty's Inspectors of Constabulary and Her Majesty's Inspector of Prisons, who nevertheless report to the Secretary of State. There is then the example of the Information Commissioner, who is appointed by Her Majesty by Letters Patent, who is a corporation sole, and who reports directly to Parliament.
We take the view that it is appropriate for the National Identity Scheme Commissioner to be appointed by the Secretary of State. I accept the point that the commissioner might be seen as more independent if he were a Crown appointment, but I am not aware that, for instance, the Immigration Services Commissioner is regarded as biased because he is appointed by the Secretary of State, nor that the Intelligence Services Commissioner is compromised for being appointed by the Prime Minister.
To a degree—I hope that the noble Lord, Lord Phillips of Sudbury, will accept this point—this is a presentational issue more than anything else. There are no differences in terms of powers and there is little that can be achieved by the amendment, as the noble Lord himself put it. All it would achieve is the perception of a little more distance. The noble Lord is not, I think, advocating complete independence, such as the Information Commissioner has. The Information Commissioner has the power to serve enforcement and information notices on data controllers, Secretary of State data controllers included. He also has the power to bring prosecutions. Total independence is therefore entirely appropriate in such a case. The National Identity Scheme Commissioner, by contrast, has a rather different role—that of reviewing and reporting—so that both the Secretary of State and Parliament benefit from his overseeing the scheme.
I am unconvinced that a case has been made for the National Identity Scheme Commissioner to be appointed by the Crown on the recommendation of the Secretary of State, as opposed to being simply appointed by the Secretary of State. I can reassure the noble Lords that the appointment of the National Identity Scheme Commissioner will follow the Office of the Commissioner for Public Appointments rules and, importantly, its code of practice, as well as Home Office guidance on public appointments by Ministers. I understand the desire for robust independence. We think that the legislation, as it is set out, achieves exactly that, so I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, that is a neat point. However, as I said in addressing the issue precisely when considering the point on commissioners, it would be commonly assumed that the Immigration Services Commissioner and the Intelligence Services Commissioner, as well as other commissioners who are appointed in the same or a similar way to the National Identity Scheme Commissioner do not have their independence compromised. One could fairly argue that they are more than prepared to take a robust and independent line.
My Lords, I am grateful to the Minister. I am also grateful for that Exocet from the noble and learned Lord, Lord Ackner, which was more than a neat point. I thought that it went to the heart of the debate—and, indeed, the Minister hung his hat on mere perception. Perception is important, and it is important here. The Minister talked about the Intelligence Services Commissioner and said that he is appointed by the Prime Minister. I might accept the Prime Minister as an alternative to the Secretary of State. What I am worried about is that the commissioner will have more to do with the Secretary of State and the overseeing of the Secretary of State's stewardship of the whole scheme than anyone else. Therefore, this is an issue on which it is worth testing the opinion of the House.
moved Amendment No. 77:
Page 21, line 37, at end insert—
( ) Where the Commissioner reviews any arrangements in accordance with subsection (2), his review must include, in particular, a review of the extent to which the arrangements make appropriate provision—
(a) for securing the confidentiality and integrity of information recorded in the Register; and
(b) for dealing with complaints made to the Secretary of State or a designated documents authority about the carrying out of the functions mentioned in that subsection."
My Lords, in moving Amendment No. 77, I shall speak also to Amendments Nos. 78, 79, 80, 81, 82, 83 and 84. Amendment No. 77 clarifies that the National Identity Scheme Commissioner's jurisdiction includes keeping under review the arrangements for securing the confidentiality and integrity of information on the register as well as the arrangements for handling complaints. I listened very carefully to the concerns raised by noble Lords in Committee and I hope that this amendment goes some way towards addressing those concerns.
Noble Lords were particularly concerned about complaints handling. As the amendment clarifies, the commissioner will have oversight of the complaints handling procedures and, no doubt, will include in his report any concerns that he or she might have about the way in which the agency is handling any complaints that it receives.
As I said in Committee, nothing in the Bill would prevent the commissioner taking an interest in or making further inquiries about a specific complaint. What I do not think would be appropriate, however, is to give the commissioner a formal role in the investigation of complaints in general. Complaints handling will be a routine function that the new agency will need to fulfil, and I do not think it sensible for the commissioner to be responsible for dealing with every single complaint, however trivial. It would substantially change the nature of his role, which is, in essence, one of keeping the scheme, as a whole, under review.
Amendment No. 77 will also require the commissioner to keep under review the arrangements for securing the confidentiality and integrity of information recorded in the register. As I have made clear, I was most attentive to the concerns raised by noble Lords in Committee, in particular those about the security and integrity of the information held on the register. It is clear from this amendment that the commissioner must have regard to that and will report on it.
However, we do not accept that the commissioner should have a formal role in requests for data correction from individuals. As I have made clear, the operation of the register will need to comply with the Data Protection Act 1998. The duties of the Secretary of State as a data controller, the rights of the individual as a data subject and the powers of the Information Commissioner will all apply to the national identity register as they do to other databases. Where a person feels his data are being unfairly processed—for example, because they are inaccurate—he could approach the Information Commissioner, who has a power to impose enforcement notices on data controllers. There is also a right under the Data Protection Act 1998 to apply to the courts for rectification.
Amendments Nos. 78 to 82 seek to modify government Amendment No. 77. These are essentially unnecessary drafting amendments; they would have no substantive effect on the remit of the commissioner.
We discussed at length in Committee the question of whether "arrangements for using", under Clause 24(2)(c), would in this context include "uses". As I said then—and I stand by that view—it would. Therefore, Amendment No. 78, which adds the word "uses" into the government amendment clarifying the scope of Clause 24(2), is particularly inappropriate, as the word "uses"—as opposed to "arrangements for using"—does not appear in the subsection which is being clarified.
Amendment No. 83 seeks to add to the powers of the National Identity Scheme Commissioner by allocating him a formal role in the investigation of individual complaints and in dealing with data corrections. I outlined in our discussion on Amendment No. 77 the reasons why that would not be appropriate. I therefore do not intend to repeat those comments now. Suffice it to say that the commissioner should scrutinise the agency's own complaints handling procedures and report on those as he or she sees fit. Staff of the agency will be under a duty to co-operate with the commissioner and provide information to him by virtue of Clause 24(4). If the commissioner is not satisfied with the handling of complaints in general, or a complaint in particular, he can raise it with the Secretary of State and refer to it in his reports under Clause 25, all of which will be laid before Parliament.
Amendment No. 83 also seeks to give the commissioner a role in data correction in individual cases. I have already outlined why we believe that this amendment is inappropriate and I do not intend to say more on that. Individuals will be able to check the details of their own entry on the register. We hope to make that possible by means of a secure online check. I know that noble Lords were concerned about how to ensure that the facility operates easily, smoothly and sensibly. We think that this proposal will be helpful. In any event, they will be able to make a written subject access request under the Data Protection Act.
If individuals are concerned that there is an error on the register, they can request that the information is removed or corrected. In the normal course of events, the problem should be solved without the need for reliance on formal legal rights. Ultimately, however, as I indicated, an unreasonable failure to rectify information can be the subject of a formal application for rectification made to the courts under Section 14 of the Data Protection Act.
Amendment No. 84 seeks to add to the remit of the National Identity Scheme Commissioner both general policy matters and areas that are currently excluded from his remit if any of those areas raises a matter of substantial public interest. The effect would be that the commissioner would have oversight of an excluded matter where a particular case raised a concern of substantial public interest.
In Committee, I outlined why the matters set out in Clause 24(3) have been excluded from the jurisdiction of the commissioner: because they fall under the jurisdiction of other bodies, be it Parliament, the courts or a different statutory commissioner. I also gave a detailed account of why the matters contained within paragraphs (a) to (d) of Amendment No. 84 are not issues with which the commissioner should become involved. I do not propose to repeat those arguments as I am sure that all noble Lords opposite have had the opportunity to read them in detail; it was on
Amendment No. 84 would, additionally, give the commissioner oversight of "general policy matters". Our view is that it is unnecessary to include that in the Bill. The Secretary of State will be establishing the policy for the agency and the agency will implement that policy. The commissioner will be keeping under review the arrangements made by the agency, by designated documents authorities or those to whom information is provided. Nothing in the Bill prevents the commissioner from commenting on any policy matter in one of his reports. Indeed, we would expect him to do so. However, we are of the view that it is inappropriate to list in the Bill all matters which the commissioner may choose to look at, or comment on in his reports. To do that would make the legislation unnecessarily lengthy, and in our view that should be avoided.
I hope that I have been able to reassure noble Lords that the commissioner's remit is sufficiently wide to ensure that the scheme has the appropriate level of oversight and I would invite the noble Lords not to press their amendments. I absolutely understand noble Lords' concerns to ensure that the commissioner has comprehensive opportunities to make comment. We believe that the way in which we have drawn Amendment No.77 enables the commissioner to do everything which is proper. I therefore beg to move while inviting the noble Lords not to do so.
My Lords, I should like first to thank the Government for Amendment No. 77, which is important and covers a great deal—indeed, the central parts—of my concern in Committee. It makes the role of the commissioner much clearer, much firmer and much better.
Of the five amendments in my name, Amendments Nos. 78 to 82, the one which seems to have, dare I say, particular merit is Amendment No. 78. I am not quite clear why the Minister rejected it. Clause 24(2) sets out four areas where,
"the function of the Commissioner" is
"to keep under review".
Paragraphs (a), (b) and (c) start by referring to "the arrangements" for this or that. Paragraph (d) does not start with "the arrangements" for anything, but says:
"the uses to which ID cards are being put".
For the life of me, I cannot therefore understand why the addition of the words "and uses" to the sentence,
"Where the commissioner reviews any arrangements", at the start of government Amendment No. 77, would not be helpful and clarificatory. If Amendment No. 77 is left as it starts, it would appear that its purview is only in respect of the first three paragraphs—those which deal with arrangements—and not the fourth, which deals with uses.
I would be grateful if the Minister could review what she said on that. I will certainly do so. I accept that Amendments Nos. 79 to 82 are inessential amendments, but I thought that they were improving ones. It struck me that to talk of reviewing the effectiveness with which arrangements are undertaken is better than reviewing,
"the extent to which the arrangements make appropriate provision".
For a start, it is shorter. I also think that, in this context, "effectiveness" is a more effective term than talking about,
"the extent to which the arrangements make appropriate provision".
However, I am not going to go to the stake on that or the other amendments which are pursuant to it. I beg to move.
My Lords, when, on the sixth day in Committee, amendments were moved to ensure that the commissioner would review and report on the extent to which there were proper arrangements for securing the confidentiality and integrity of the information recorded in the register and that there were effective arrangements for dealing with complaints, the Minister argued, at col. 1519 of the Official Report, that it was not necessary to do so as the spirit of the amendments was already reflected in Clause 24 and because the existing complaints procedures were more than adequate. She has now taken a welcome step forward and her new Amendment No. 77 is certainly helpful.
The Minister has argued that the amendments moved by the noble Lord, Lord Phillips of Sudbury, are largely drafting amendments and do not add very much. He said that they were improving amendments but did not pursue most of them with any great determination. I think that there is a rather stronger case to be made out for them. In our last debate on these issues, the noble Lord, Lord Thomas of Gresford, pointed out that the commissioner's role was confined to considering structures and frameworks. The amendments tabled by the noble Lord, Lord Phillips, tighten up the new subsection to ensure that the commissioner will not just examine appropriate provision but consider whether the arrangements really are effective and work in practice.
The issue of complaints had been raised by the Select Committee on the Constitution in paragraph 7 of its third report. The last time that we debated this matter, the Minister argued:
"It would be wrong to give the commissioner a formal role in the investigation of complaints".
She repeated that argument this afternoon. She then said that it would be a routine function that the new agency would need to fulfil and that the United Kingdom Passport Service already had a tried and tested system for dealing with complaints. On that occasion, she did not appear to recognise that the handling of complaints about the accuracy of the register and the uses to which it will be put is not at all the same as the handling of complaints about the manner in which passports are issued.
The Minister went on to give us a description of what she believed was a satisfactory complaints procedure. She said:
"There is an existing four-stage complaints procedure which includes a review by the local customer service manager, followed, if not satisfied, by a review by the headquarters' customer service department. If not satisfied, a complainant can write through their MP to the Passport Service chief executive or a Home Office Minister and then, as I have already said, to the Parliamentary Commissioner for Administration—the ombudsman".—[Hansard, 19/12/05; col. 1520.]
Anyone who has had to deal with the so-called "customer service" organisation of any large body—as I have had to do recently—will know what a nightmare it can be. After a long session in which you are asked to key in various numbers on your telephone and a prolonged lecture—admittedly, usually imposed by some regulator—about your rights, you then listen for probably a quarter of hour, at your expense, while someone says that you are a customer and your custom is greatly valued. Eventually you get through, only to be moved on to someone else and to have to wait for another 22 minutes—as happened to me the other day—before you get connected. If the Minister had had the privilege which some of us have had of being a Member of Parliament and going through the procedures by which you pass on complaints to Ministers and the ombudsman, then I do not think that she would have read that part of Sir Humphrey's draft with quite the confidence she did on the last occasion. It seems a far from satisfactory set of arrangements.
Amendment No. 83, in my name and that of my noble friend Lady Anelay, will give the commissioner the responsibility of setting up a system for dealing with complaints that tailor the whole thing to the requirements of the register. It would not give the commissioner himself the job of dealing with detailed complaints. I agree with the Minister that that should not be his role.
The final amendment in this group, Amendment No. 84, which is in my name and that of my noble friend Lady Anelay, takes up the issue raised by the Minister on
It is hard to see why that should be necessary if the commissioner is specifically precluded from keeping those matters under review, as he is by Clause 24(3). We understand perfectly well, however, why there needs to be a protecting mechanism, and our Amendment No. 84, which will be very relevant when we debate the next group of amendments, maintains the necessary safeguards but allows the commissioner to keep under review general policy matters, particularly issues of substantial public interest that may arise from particular cases without, of course, going into the details of those cases in a way that could prejudice security or crime prevention.
That is a sensible way in which to proceed, and I hope that the House will agree.
My Lords, it seems to me that unless the amendment in the name of the noble Lord, Lord Phillips, regarding usage is inserted, then the uses to which ID cards are to be put under subsection (2)(d) will be excluded from the noble Baroness's amendment. The amendment says:
"Where the Commissioner reviews any arrangements in accordance with subsection (2)".
That refers to arrangements, not to uses. I understood the Minister to say when she introduced her amendment that the amendment tabled by the noble Lord, Lord Phillips, was unnecessary. I am afraid that that is an abuse of the English language. If one says that we must look at arrangements, we look at arrangements—uses are by their nature excluded. So a provision that puts in a "use" is either deliberate or bad English. Which is it?
My Lords, I seem to remember that the whole point about the previous amendment was that the Information Commissioner would keep a beady eye on all this stuff on our behalf and everything would be fine—which is why we did not need the extra protection of Amendment No. 76. The word "uses" surely means data sharing, among other things. I would not necessarily call data sharing an arrangement. If it is trying to provide information, it is a use. I am sure that clever lawyers in government departments who wanted to get the information could argue that. I therefore believe that we need the word "uses" here, or we need Amendment No. 76 back.
My Lords, I too thank the Government for tabling their amendment. It meets the commitment in their letter to noble Lords which followed our Committee debates. In the letter, they maintained that they had always intended that the National Identity Scheme Commissioner should as part of his function keep under review the development and operation of the complaints procedure to provide some kind of reassurance that the register is secure and reliable. They also maintained in the letter that they believed that the Bill already gives them the power to do that, but they offered to table an amendment to clarify the matter. That is what they have sought to do here. The whole question has been whether we are 100 per cent grateful or whether we feel that there is greater mileage in having greater clarity with regard to other amendments that have been tabled.
I have tabled two amendments with my noble friend Lord Crickhowell—Amendments Nos. 83 and 84—but there is a more important amendment to come, on which my noble friend will lead, in regard to where a report is laid. I therefore feel that it would be churlish to push ahead on Amendments Nos. 83 and 84. Although I would have preferred Amendments Nos. 83 and 84 to have been accepted, I am not going to go to the stake on the issue if there are other robust safeguards. I think that the House has already decided on one with the appointment of the commissioner. I hope that the Government will be able to accept my noble friend's Amendment No. 85 with regard to a report being directed at Parliament and not via the Secretary of State.
In soft pedalling and assisting the Government on Amendments Nos. 83 and 84, I am still not satisfied with the way in which the Minister sought to address the issue in Amendment No. 78, which has been tabled by the noble Lord, Lord Phillips of Sudbury. I agree with the noble Lord that, to coin a phrase, it is not appropriate to forge ahead on this one today given the other aspects of the debate and the other amendments on the role of the commissioner.
I am rather perplexed that the Government say the words "and uses" should not be inserted. I agree with the noble Earl, Lord Erroll, about what those two words should cover and that they should be on the face of the Bill. The Minister has not fully satisfied me on this issue but, as the noble Lord, Lord Phillips, said, it is not something on which I am going to go to the stake.
My Lords, I hope I can clarify the issue in relation to "uses". The uses to which ID cards are put have a direct role in the two matters dealt with by government Amendment No. 77, which relates to paragraphs (a), (b) and (c) of Clause 24(2), but not to paragraph (d). That is why in opening in support of my Amendment No. 77—we discussed this at some length and that is why I was reluctant to do it all over again—I said that the "arrangements . . . for using" in Clause 24(2)(c) would in this context include "uses". Therefore Amendment No. 78, which seeks to add the word "uses" into the government amendment which clarifies the scope of Clause 24(2) is particularly inappropriate. The word "uses", as opposed to "arrangements . . . for using", does not appear in the subsection which is being clarified. Our amendment relates to paragraphs (a), (b) and (c) of Clause 24(2), but not to paragraph (d), which is why I say that it is correct.
I absolutely understand noble Lords' concerns. We wish to draw Amendment No. 77 with the appropriate level of acuity. We believe that we have done so, because it does not relate to paragraph (d). With that further clarification, I hope that noble Lords opposite and the noble Lord, Lord Phillips of Sudbury, will be appropriately grateful.
My Lords, I fear that my legal intelligence may be much exercised and long in years, but it has always had a lumpen quality about it. I still do not follow the Minister's arguments but no doubt I will when I look at them in Hansard. If I do not, I shall certainly not refrain from bringing the amendment back at the next stage, especially as I have had a great deal of support from other noble Lords. However, at this moment, I beg leave to withdraw the amendment.
My Lords, we now come to what I believe are two very important amendments. In considering the Bill, we must have as our first and primary responsibility the protection of the interests of the citizen. That should also be the first and primary responsibility of the National Identity Scheme Commissioner.
The noble Baroness believes that the primary job of the commissioner is to advise the Secretary of State and to reassure him that the identity card scheme is operating correctly. That somewhat bizarre proposition was contained in the Minister's response to the seventh report of the Select Committee on the Constitution, which recommended that the commissioner should report directly to Parliament—exactly as the Information Commissioner does, which seems a pretty good precedent. I urge the House to reject the proposition advanced by the noble Baroness and to accept Amendment No. 85, which would ensure that the commissioner lays reports before each House of Parliament.
The existence of the register and the way in which it is used—or misused—are not trivial matters. They will affect fundamental rights and freedoms. As we discovered during our lengthy examination of the Bill, the Government are taking wide powers to amend the legislation by order. The noble Baroness, on day 6, acknowledged at col. 1518 that while there was no commissioner dealing with passports or driving licences, the Government recognised that the introduction of the identity card scheme, "raises additional issues", and so believed that it was right to create what she termed a "new level of oversight".
We can surely agree that the matter raises additional issues. It creates the register to which a large number of organisations will have access. If we are to have a new level of oversight, surely in logic the commissioner should report to Parliament and not to the Secretary of State, whose department and agencies he is overseeing. It is crucial that the commissioner has the widest possible freedom to do his job and to report what he deems appropriate, subject only to restrictions regarding issues relating to security and crime prevention, contained in Clause 24(3), which we discussed in the previous group. In addition to the topics excluded by that clause from the matters that the commissioner is to keep under review, and which he can report on, my Amendment No. 85A will exclude from his report subjects which, after consultation with the Secretary of State, the commissioner judges to be prejudicial to security or the detection of crime.
The noble Baroness built her case to send the report directly to the Secretary of State around those security questions. In practice, and because of the combination of the two provisions to which I have referred, that argument cannot be sustained. The Minister may argue that Clause 25(3) requires the Secretary of State to lay before Parliament a copy of any report made to him by the commissioner, but that is not the same thing at all.
Noble Lords with experience of how government works will envisage clearly the pressures that will be placed on the commissioner to exclude from his report any material that the Secretary of State would prefer to keep from Parliament and the people. That is particularly likely in the case of the Home Office. It is a great department of state, and it knows it. There is a certain feeling of superiority that makes those who work there feel that they are perhaps rather better than others—the hoi polloi. It is the sort of attitude that I first experienced rather painfully in my first days as a member of the Cabinet dealing with the sensitive issues of Welsh language broadcasting.
I have had other experience—not with the Home Office, but with other departments. Mine was an unusual pattern, in that I was first a Cabinet Minister for eight years and then for eight years I chaired a very large quango—the National Rivers Authority. In our early days we established an enviable reputation for robust independence. Over the years that followed, both the department and the Minister of State responsible for agriculture sought delicately to assert some influence over the line that we should take. It was all beautifully done—very seldom did the Secretary of State himself intervene. There would be a telephone call from a senior official, many of whom were close friends, and whom I greatly respected. There were clear implications that altogether life would be much smoother if we took a rather different line. There was a great deal of press briefing that Lord Crickhowell had gone native on the environment, which I took to be a considerable compliment. It was an indication to my successor when he took over at the Environment Agency that perhaps they would value and support someone who was rather less independent.
Partly on the basis of that experience, I do not want the commissioner to be placed in a situation when such pressures can be easily applied. I want him to be a free, independent and robust defender of the interests of every citizen whose name will have been placed compulsorily on the register, reporting not to the Secretary of State, but about the Secretary of State and his agency's management and conduct of the ID cards project and the register. I want his reports to be placed before Parliament directly, not indirectly. It is Parliament, not the Executive, which is the proper defender of the interests of citizens and their rights. I beg to move.
My Lords, the concept of identity cards is so alien to British history—for several of us, it is extremely offensive—that I hope that eventually the legislation will be repealed and cast into the dustbin of history. It is therefore extremely difficult to trust a Secretary of State in an Administration that has had, and continues to have, such a cavalier attitude to our historic liberties, or to trust a government not to do what my noble friend Lord Crickhowell says they will do. As my noble friend says, it is Parliament—or should be—that defends our historic liberties. We should certainly trust Parliament more than the executive, however supine it sometimes is in the face of the executive. Therefore, on the basis of old-fashioned British liberty, I support the amendment tabled by my noble friend Lord Crickhowell 100 per cent.
My Lords, I rise briefly to support the amendment wholeheartedly. I apologise to the noble Lord, Lord Crickhowell, for not adding my name to it. Every word that he said I believe to be right. The arguments that I adduced in moving the amendment to have the appointment of the commissioner made a Crown appointment apply equally here. I remind the House that we had a tussle over the same issue when we debated the creation of the interception commissioner under the Regulation of Investigatory Powers Act. I think that the House decided to make the report of the interception commissioner one that went to Parliament. For all the reasons that noble Lords have given vent to this afternoon, we should insist on the amendment.
My Lords, there is an old saying that just because you are paranoid does not mean they are not out to get you. Some of us feel that that could arise with ID cards and the national identity register. The easiest way to allay this—I hope unjustified—paranoia and to believe that everything is all right would be to ensure that there is an independent check so that the report does not go through the very person who controls the national identity register. It is illogical that a person's employee, effectively, or someone within the same department, should report to the person on whom they are having to report. Instead, the commissioner should report directly to Parliament where liberties are, we hope, safeguarded. I very much support the amendment.
My Lords, as a former Member of the other place, I should like to say a couple of words in support of the excellent amendment moved by the noble Lord, Lord Crickhowell. The way in which Parliament is being ignored and sidelined is increasingly worrying to me and to many other people. The great benefit of this amendment is that it will introduce a concept that, in matters of such import as the identity card register or the identity card itself, the commissioner should be responsible through his report not to the Home Department but to Parliament. That is an altogether sensible proposition.
The Government ought to show goodwill by accepting the amendment. In so doing, they may very well restore confidence in the belief that the Government continue to believe in Parliament as the true representative of the interests and freedoms of this country and not simply as the servant of the political party that happens to be in power for the time being.
My Lords, I strongly support my noble friend's amendment, to which I have added my name. The Constitution Committee's third report made a clear recommendation that the commissioner should be able to report directly to Parliament. The amendment would achieve that objective, while also ensuring that a filtering mechanism would enable material to be excluded from the public report where there was a good reason to believe it would be prejudicial to national security or to the prevention or detection of crime. Despite the fact that the commissioner is appointed by the Secretary of State—although, fortunately, if the Government accept the decision of the House, he will be appointed by the Crown—we believe that he is carrying out a public function for which he should be accountable directly to Parliament.
As we have remarked in the past, the Bill's provisions mark a completely new departure in the relationship between the state and the individual. Parliament has a vital role to play in the system of accountability for the oversight of the operation of the scheme. Amendments Nos. 85 and 85A broaden the commissioner's powers by ensuring that that reporting takes place directly to Parliament. They provide a filtering system; we believe that the way in which a filter is provided to ensure that sensitive information is not included in the report that goes to Parliament fully meets the arguments put by the Minister when we debated these matters in Committee. I hope that the Government are now able to accept the amendments.
My Lords, I have listened very carefully to the arguments in support of these amendments. However, as I stated when we discussed these issues in Committee, the Government consider it necessary for the reports to be addressed to the Secretary of State with the potential for parts of them to be excluded from the report laid before Parliament.
I hear what the noble Lord, Lord Crickhowell, says about that contention; he suggests that it is bizarre that we should so decide. However, this situation has prevailed in a number of other positions. I have already made it clear that there are precedents for the removal of sensitive aspects of the reports of statutory commissioners before they are laid before Parliament. For example, similar mechanisms to the one in this clause apply in relation to the Surveillance Commissioner, the Intelligence Services Commissioner and Her Majesty's Inspector of Constabulary.
Clause 25 contains safeguards to ensure that there is sufficient scrutiny of the commissioner's reports, because all reports prepared by the commissioner will be laid before Parliament. I hear what the noble Lord, Lord Crickhowell, says about his experience. The views that he expresses reflect the feeling almost of awe in which the Home Office was hitherto held. I can assure noble Lords that there is an appropriate degree of vigour and scrutiny when it comes to the Home Office of today. There is no longer any such imbalance.
In addition, there are only two reasons why matters may be excluded from the report that is laid before Parliament. Those are if the publication of the material would be prejudicial to national security or to the prevention and detection of crime. A precedent for reporting directly to Parliament is, for instance, the Information Commissioner; he has very wide enforcement powers, but they are unrelated to national security matters. The Immigration Services Commissioner is a regulatory commissioner of immigration services providers who reports directly to Parliament. We have to look at each commissioner and the role that they are to perform, and then decide where the appropriate reporting responsibilities should lie. We believe that they lie in the way that we have outlined. This is not, as the noble Earl, Lord Onslow, would cast it, a cavalier attitude; it is a very careful and balanced approach to the way in which reporting should be dealt with.
Under Amendment No. 85A, the commissioner would have the final say over which matters would be excluded from his reports. We do not think that the commissioner is the right person to make that decision. The Secretary of State, by virtue of his overarching responsibilities, has a thorough overview of issues affecting national security and the prevention and detection of crime. For this amendment to be workable and for the National Identity Scheme Commissioner to be capable of making an informed decision about what should or what should not be excluded from the report, he would have to be briefed on national security and crime in the way that the Secretary of State is. Aside from being an illogical and disproportionate way of ensuring that certain sensitive information does not get into the public domain, that would significantly change the nature of the commissioner's role. I hope that that is not something which noble Lords would easily contemplate.
The noble Lord, Lord Crickhowell, talked about access to the register. In case noble Lords are under any misapprehension about that, I reiterate that a number of organisations which he suggests would have access to the register will not. I hope that I can reassure noble Lords that the Bill allows the Secretary of State to provide information in particular circumstances to those authorised—for example, to the police or security services. However, provision of information that has been requested is very different from unfettered access, which this Bill does not allow.
The noble Earl, Lord Erroll, may well be right that this is a sign of paranoia. I hesitate to suggest that noble Lords are paranoid, but, for the purposes of this argument, I can certainly accept that the noble Earl may be right. Let me assure them that the Bill is not out to get anyone. It is delivering a fair, proportionate response, and the commissioner will have an extremely important role, which can properly be discharged in the way we have indicated. I hope that I have persuaded noble Lords to be a little more moderate in the way in which they consider the Government's proposals and not to press these amendments.
My Lords, I am grateful to the Minister for her response. I noted her description of the modern Home Office. I cannot say that it entirely coincided with my recent impression of the conduct of a number of Home Secretaries, but we shall leave that. I did not say that the defence that she had put up on grounds of security and law were bizarre; I said that I thought it was bizarre to believe that the primary job of the commissioner is to advise the Secretary of State and give him reassurance that the identity cards scheme is operating correctly. Indeed, I took seriously the arguments about security. I believe that the combination of Clause 24(3) with its tight direction to what can be looked at by the commissioner, combined with my Amendment No. 85A, will provide perfectly adequate protection. This is such an important matter that I want to seek the opinion of the House.
moved Amendment No. 85A:
Page 22, line 28, leave out subsections (2) to (5) and insert—
"( ) The Commissioner may also, at any time, lay before Parliament such other reports on any matter relating to the carrying out of those functions as the Commissioner thinks fit.
( ) If it appears to the Commissioner, after consultation with the Secretary of State, that the publication of a particular matter contained in a report under this section would be prejudicial to—
(a) national security, or
(b) the prevention or detection of crime, the Commissioner must exclude that matter from the copy of the report that he lays before Parliament.
( ) Where the Commissioner excludes from publication any matter under the provisions of this section, he must make a report on that matter to the Secretary of State."
moved Amendment No. 93:
After Clause 26, insert the following new clause—
"TECHNICAL ADVISORY BOARD
(2) The order providing for the membership of the Board must also make provision which is calculated to ensure that—
(a) the membership of the Board includes persons likely effectively to represent the interests of the citizen in respect of civil liberties, with particular reference to the privacy of the individual;
(b) the membership of the Board includes persons likely effectively to represent the interests of the information technology industry, with particular reference to biometrics and the security of the IT infrastructure of the National Identity Scheme;
(c) the membership of the Board includes persons likely effectively to represent the interests of law enforcement and national security;
(d) the membership of the Board includes such other persons as the Secretary of State thinks fit to appoint as members of the Board; and
(e) the Board is so constituted as to produce a balance between the representation of the interests mentioned in paragraphs (a) to (d).
(3) The order providing for the membership of the Board must also make provision which is calculated to ensure that the Board reports to both Houses of Parliament on an annual basis.
(4) The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(5) It shall be the duty of the Board to offer advice on the development of the National Identity Scheme."
My Lords, I apologise for having been unable to attend the last day in Committee just before Christmas, when this matter would have been debated. I therefore hope that your Lordships will forgive me for retabling both this and other amendments on Report. The amendment proposes the establishment of a technical advisory board to advise on a number of areas relating to the development of the national identity register. I express gratitude to my noble friend Lord Cope. I have, as it were, borrowed the text of the amendment from him. Although I have broadened its scope somewhat, the House may recognise it from a previous incarnation as an amendment that he made to the Regulation of Investigatory Powers Act.
The proposal is in part motivated by the recognition of the Constitution Committee of,
"the desirability of creating an independent expert advisory or consultative committee or commission to exercise informed judgement regarding development of the National Identity Scheme".
I can be certain that the Government will reject the amendment. As did the Minister earlier in our proceedings and in her helpful letter of
I make it clear that I do not in any way question the integrity or the expertise of the various bodies cited. Nevertheless, they are of necessity creations of government and, to that extent, their remit is rooted in the determination of the Home Office to enact this measure regardless. Quite apart from that, it is worth noting that, in making its recommendation, the Constitution Committee took due account of the bodies already established by the Government. It none the less felt the situation warranted the creation of an outside body to "exercise informed judgment". That is what the amendment would provide. I beg to move.
My Lords, I am certainly grateful for the brevity of the contributions on this amendment. I shall endeavour to put over as effectively as I can our case in opposition to it. I have a strong sense of déjà vu, because it was I who had to deal with the proposal of a technical advisory board during our consideration of RIPA.
The noble Earl, Lord Northesk, seeks to establish an advisory board to offer advice on the development of the national identity scheme and to report annually to both Houses of Parliament. The board's membership would consist of representatives from the IT industry, biometrics specialists, law enforcement bodies and civil liberties groups. The last groups would have a particular interest in the privacy of the individual.
As the noble Earl said, the amendment was tabled in Committee and was then withdrawn for understandable reasons. As agreed, we addressed the amendment in correspondence at the close of the Committee stage. The letter was copied to all noble Lords who had taken part in the various debates on the Bill. As we stated in that letter, this additional scrutiny of the scheme is neither warranted nor necessary. That is because there is already sufficient independent oversight of the scheme's development.
In the first instance, the National Audit Office will provide an expert and thorough examination of the economy, effectiveness and efficiency of the scheme's use of public funds. This is the case for all government projects. However, the identity cards scheme will have several additional layers of scrutiny, as we detailed in our correspondence. For your Lordships' convenience, I will now repeat for the record exactly what we wrote.
The Government's biometrics assurance group will be chaired by the Government's Chief Scientist. It will review the biometric aspects of the ID cards programme, in conjunction with the Home Office's Biometrics Centre of Expertise, led by the Chief Biometric Officer, Marek Rejman-Greene. All this will build on the work of the ID cards agency's own biometric advisers and their co-operation with other recognised biometric research institutes, such as the National Physical Laboratory. This group has already met and will meet quarterly throughout the year.
Additionally, an independent assurance panel will look at project management, finance, procurement and the other aspects of the programme that are not covered by the biometrics assurance group. This panel, which meets monthly, is chaired by Mr Alan Hughes, a former chief executive of First Direct Bank. The chair of the independent assurance panel serves also as a non-executive member of the identity cards programme board. The IT infrastructure of the national identity register will also be put through an official security accreditation process, as laid out in Cabinet Office guidelines, before it can commence operations. Furthermore, this process will be followed by continuing audits of the register's IT security.
The scheme's development is also scrutinised by the principal users group and private sector users group, which represent the interests of public and private sector organisations who will make use of the scheme. Consultations have taken place between the identity cards programme and special needs groups and we will continue these. Additionally, there is continuing dialogue between law enforcement agencies and the programme team to ensure that their requirements are considered as the scheme develops.
Civil liberties and privacy groups have already taken part in the consultations, which took place on the scheme and on the draft Bill. In addition, the National Identity Scheme Commissioner will provide further scrutiny of the scheme, which will of course also be bound by data protection legislation and therefore comes under the jurisdiction of the Information Commissioner.
I hope that your Lordships would agree that, taken together, those will provide a very great variety and depth of scrutiny. We believe that adding further layers would not add to the quality of scrutiny, but duplicate it and increase the levels and layers of bureaucracy. The technical advisory board is therefore unnecessary. I can reassure the noble Earl that the scheme will not be implemented unless the Government are sure that the technology is robust and effective.
It is worth making a few comments about the comparison with the Technical Advisory Board established under the Regulation of Investigatory Powers Act 2000. That board was created under the terms of the Act and is a very different creature from the board suggested in this amendment. The role of the board is very closely defined. It ensures that any technical or financial obligations placed on industry arising from an interception warrant are reasonable. A company can appeal to the board if it believes that this is not the case; to date the board has not had to consider a single case. The board does not provide general advice about the development of operations, based on the Act as a whole. Such general advice is obtained through the close consultation between the Home Office and the industry itself. The board is required neither to report to Parliament, nor to have its membership approved by Parliament.
With the development of the independent assurance panel, the biometrics assurance group, consultations with public sector, private sector and special needs user groups, and the advice of the scheme commissioner, we believe we have put in place a comprehensive framework to ensure independent, wide-ranging and informed advice, which can be obtained to guide the development of the scheme in total. I reject the assertions made by the noble Earl, Lord Northesk, that we are failing to address issues of cost or technology, or the development of the scheme as it unrolls. We have put in place many safeguards and structures to ensure that we have a structure and a number of bodies in place, which will enable us to consult extensively throughout the development of the identity cards programme. For those reasons, we reject this amendment and I invite the noble Earl to withdraw it.
My Lords, I thank the Minister for his reply. As I made plain in my introduction to the amendment, I had anticipated the content of his response. To that extent my expectations have not in any way been disappointed. Our debates today have focused very firmly on the principle that oversight of the whole ID scheme should more properly reside with those who are truly independent of the Home Office and the rest of government. I have to continue to beg to differ with the noble Lord, given that so many uncertainties persist in respect of cost, technology and so on. To my mind it is necessary that the development of policy should also be subject to truly independent oversight. My intention is again to be of assistance to the Government. After all, the existence of a technical advisory board should pre-empt the possibility of the Home Office being inadvertently led down policy avenues that turn out to be technological dead ends or the like. Be that as it may, I shall carefully read the noble Lord's comments—even though I virtually wrote them for him in my introduction—and reflect on where I may yet wish to take this matter. In the mean time, I beg leave to withdraw the amendment
My Lords, my noble friend's Amendment No. 100, to leave out Clause 31, is grouped with my amendment. I look forward to hearing from him and I suspect that he will have some trenchant questions to ask the Minister about the need for this clause, particularly in view of the existing protections available in the Computer Misuse Act. When this week the Government published their new Police and Justice Bill—as if we needed another Home Office Bill; they rain down upon us—I noticed in passing that there is reference in the Bill—
My Lords, when the noble Baroness says,
"as if we needed another Home Office Bill",
I think the heart of the whole House goes out to the noble Baroness, Lady Scotland, because this is a very personal matter for her. She seems to be the only competent Minister in the House, to gather by the load put upon her shoulders. In all the clash and battle of conflict, I would like to register my sympathy for her.
My Lords, indeed, we regularly share our heartfelt sympathy. It is just that we do not seem to be able to move her right honourable friend the Home Secretary in the right direction. He keeps on showering Parliament with these Bills.
A couple of clauses in the Police and Justice Bill refer to computer misuse. I think that it would be helpful if we were able, between now and Third Reading, to see whether there is any read-across. I confess that when I downloaded the Bill in PDF format at the weekend, it took some while to do so by remote. I did not get to the stage where I could read every part of that Bill, but there may well be some read-across. By the look on the face of the noble Baroness, I hope that there may not be.
We welcome the objective behind Clause 29, which is to create a criminal offence of disclosure without lawful authority of information that is held on the national identity register. Amendment No. 98 would put an obligation on the prosecution to prove that the person made the disclosure "knowingly or recklessly". We are merely seeking to ensure that somebody who accidentally makes a disclosure is not treated in the same way as somebody who has malicious intent in making that disclosure or, perhaps, is so unprofessional that he does not adopt what is normally good practice in his methods and therefore allows the material to be leaked.
I was rather puzzled by the response of the Minister in another place to a similar amendment. He held that the amendment was unnecessary because an individual who was conscientious and acting responsibly could find a defence in subsection (4). The difficulty in subsection (4) is that the defence only covers somebody who believes at the time of disclosure that they have reasonable grounds or lawful authority to make the disclosure. I am concerned about the situation that may well arise—and this may reflect what the noble Lord, Lord Phillips, has said regarding the assiduity of the noble Baroness, Lady Scotland, and the huge workload that she carries—where somebody who works wholeheartedly according to good practice throughout their career, but is very tired at the end of a long day, particularly if the Opposition have kept them in the House until 12.30 am, follows what they think is the normal procedure. This person does everything they possibly can to do the right thing, but when sending information by e-mail they simply press the wrong button and send out the information to the wrong recipient. Alternatively, perhaps they send out the information but it is corrupted and is not sent in the right way. My concern is that at that stage that person does not have the authority to disclose the information to the person who receives it, so although they think that they are doing the right thing—that they have the authority to make the disclosure—they disclose it to the wrong person, albeit not irresponsibly. Can we be assured that such a person will not come across any difficulty as a result of the current drafting of the Bill? I beg to move.
My Lords, it may be of convenience to the House if I could speak in this group to Amendment No. 100, which proposes the deletion of Clause 31. None of us questions the desirability of maintaining the security and integrity of the register. At first blush, therefore, the inclusion of the clause to deal with the possibility of its being tampered with is both sensible and welcome. But, in reality, the way in which it has been drafted creates all sorts of problems. I shall turn to those in due course.
First, it is important, so far as we can, to understand the IT architecture that the Government are contemplating. As the noble Lord, Lord Bassam, told us:
I can understand that. Clearly, and sensibly, the intention is that the scheme should operate via closed and secure servers. But we also know—because the noble Lord, Lord Bassam, has told us and, indeed, the noble Baroness, Lady Scotland, confirmed it last week—that facility will exist for individuals to access their records on the register via the Internet. I can understand that too. Presumably data will be uploaded to firewalled gateway servers, which will, in turn, access the secure register servers to submit the revised information or, indeed, for verification and validation purposes. In fact, as envisaged by Clauses 11 and 19 to 23, there will be a myriad of such gateways, not least to satisfy the law enforcement and national security purposes of the scheme. To that extent, therefore, it will probably be more accurate to say that the register will be "connected" to the Internet, albeit virtually rather than physically. That relates back to the point that I made earlier in respect of DNA data, but, again, I am not going to go down that path.
Unfortunately, so far as I understand it, Clause 31 creates only the offence of tampering with the register; it does not provide any protection for these gateways. That is crucial because, in effect, they are likely to be the weakest and least secure links of the design. To illustrate the point, we can consider so-called "denial-of-service" attacks. In effect, the gateways could be rendered inoperable by any given DOS attack, thereby compromising the register itself. Yet, as I read the clause, such a circumstance would not necessarily be covered by the current drafting.
The Government may wish to argue that the provisions of the Computer Misuse Act offer adequate protection in this regard—something about which I and many others have expressed concern for some years. The Minister will know only too well that the view that the CMA provides adequate coverage is a very long way from being universally shared. Indeed, we have to approach its applicability to DOS attacks with healthy dollops of scepticism, not least because of the judgment a month or so ago in Wimbledon magistrates' court.
Be that as it may, Clause 31 would appear in part to have been drafted to protect the register from such attacks, although, as I have already implied, I am far from convinced that the current drafting offers very much protection. Yet, in respect of all other governmental databases, it is argued that CMA is robust enough to be proof against such attacks. In her letter of
The Minister might like to imagine that the Police and Justice Bill, introduced in another place last Wednesday, offers adequate rebuttal to my comments here. On the face of it, Clauses 33 to 36 of that measure would appear to represent the much-needed update of the CMA. However, I am bound to say that Clause 35, intended to criminalise the development, distribution or possession of so-called "hacker tools", is especially asinine—not least because very few of these do not have entirely valid and legitimate uses.
Moreover, the fact that these clauses effectively replicate the drafting of Clause 31 of this Bill, giving the appearance of having been added almost as an afterthought, adds weight to my argument. Surely a more appropriate way forward here would be to update the CMA properly rather than, on the one hand, singling out the register for this preferential treatment and, on the other, seeking to rely on the decidedly suspect drafting of the Police and Justice Bill.
Indeed, viewed from an alternate perspective, if, as the Government have previously maintained, the CMA is an adequate measure to deal with the problem of DOS attacks generally across their IT infrastructure, or if it is supposed that Clauses 33 to 36 of the new Bill update the CMA appropriately, what useful purpose is therefore served by including this clause at all? As we have already experienced today, in defending amendments that seek to write elements of data protection into Bills, Ministers never tire of telling us that to do so would be otiose because such extant legislative provision has efficacy in any event. Viewed logically, the same could be said of this clause in respect of either the CMA or the Police and Justice Bill.
But, as I have already implied, this is not the clause's only problem. Subsection (3)(b) is particularly troublesome. In terms, it defines "unauthorised modification" of data on the register as "conduct" which,
"makes it more difficult or impossible for such information to be retrieved in a legible form . . . or contributes to making that more difficult or impossible".
A host of wholly innocent circumstances could occasion such an event. For example, it is not unheard of for systems to crash when being subject to routine maintenance or updating. The House will no doubt recall the recent occasion involving 60,000 desktop computers at the Department for Work and Pensions. Is it really the intention that IT contractors servicing government computers should be criminally liable simply for making a mistake, or are civil servants to face prosecution for going on strike? What, too, of forensic hacking—possibly the most effective method of properly testing the parameters of an IT system's security and integrity? It seems to me that these are all circumstances that, notwithstanding the qualification of "requisite intent" at subsection (1)(b), could fall foul of the drafting at subsection (3)(b).
As I have already indicated, I am fully aware of the contents of the letter of
My Lords, subject to anything that the noble Baroness may say, it would seem to me to be just if Amendment No. 98 were accepted because criminal liability without intent or recklessness is generally unacceptable. But I find it hard to believe that the deletion of Clause 31, with nothing in its place, can be in the public interest, despite the extremely learned exegesis of the noble Earl, Lord Northesk. Again, I look forward to hearing what the Government have to say but, as I said, I am inclined to oppose Amendment No. 100.
My Lords, I commend the noble Lord, Lord Phillips, for his opposition to Amendment No. 100. It is rare in this Bill that I have his company and I want to record my gratitude for it. I also want to record my gratitude for his sympathy and that of the noble Baroness—I experience joy on a daily basis in appearing before your Lordships and going through these Bills. Far be it from me to have that joy curtailed, but I understand that in future your Lordships may be denied the undoubtable pleasure of my company in that we will, I hope, have fewer Bills.
Amendment No. 98 relates to the criminal offence of unauthorised disclosure of confidential information provided for in Clause 29. I understand what worries the noble Baroness, Lady Anelay. I understand that she rightly says, "What about the person who, tired and worn down by the burdens of office, presses the right button or the wrong button? Will they be brought to book for it?". Perhaps I may reassure the noble Baroness in that regard. I tried to give such reassurance as fully as possible in my letter; I am more than happy to repeat during this debate what I said in the letter. It is our view that a person who, acting in good faith in the course of his job, accidentally made a disclosure could avail himself of the defence of reasonable belief. This would apply even if it was a physical error, such as accidentally pressing the wrong button. The person would reasonably have believed, at the time he made the error, that he was acting with lawful authority. That is the concern properly expressed by the noble Baroness, and we are very clear that such a person would be protected.
Amendment No. 100 would remove from the Bill Clause 31 in its entirety. I understand that the noble Earl, Lord Northesk, put the amendment forward because he would like me to repeat the reassurances I gave in the letter and I am more than happy to do so. This clause introduces the offence of causing an unauthorised modification to the register. There is a similar defence to that in Clause 29. It is a defence for a person to show that he believed, on reasonable grounds, that a modification was authorised.
I am also aware that a number of trade unions are concerned about what would happen if lawful action was taken. I will therefore take this opportunity to mention two sets of circumstances which we do not consider fall within the remit of this offence. IT contractors who, in servicing government computers, made a mistake that resulted in computers crashing would not have committed this offence. Similarly, Clause 31 would not criminalise striking civil servants, on the grounds that their action might make it temporarily impossible to retrieve information. Subsection (3)(b) catches only action that makes it more difficult or impossible for information to be retrieved in a legible form. It is aimed at deliberate acts of sabotage or the introduction of viruses and so on and will not catch a simple withdrawal of labour.
Noble Lords have expressed interest in the extent to which the provisions of the Computer Misuse Act already cover the offence of tampering with the national identity register. I know it is something that preys almost constantly on the mind of the noble Earl, Lord Northesk. The Computer Misuse Act contains a range of offences designed to cover all aspects of computer misuse; indeed, that Act will, as the noble Earl, Lord Northesk, and the noble Baroness rightly indicated, be amended by the Police and Justice Bill in order to increase certain maximum penalties, and to respond to developments in cyber crime. The provisions of the Computer Misuse Act would apply to computer crime against the national identity register.
Nevertheless, we felt it appropriate to create an offence of tampering, which relates specifically to the national identity register. Any computer crime against the register, which did not fall within the Clause 31 offence, could be dealt with under the wider provisions of the Computer Misuse Act. The Clause 31 offence attracts a maximum penalty of 10 years' imprisonment and would apply even where the tampering was effected by someone working from a computer outside the United Kingdom. In saying that, I hope that I have given the noble Earl the reassurance he sought and have answered the question of the noble Baroness. I therefore invite the noble Baroness to withdraw her amendment.
My Lords, I am grateful to the noble Baroness for her assurances. I am perfectly well aware that the Government have, throughout, sought to explain to those who will be operating this system, particularly those in the trade unions, that they will not fall foul of a prosecution if they were only trying to do their job. My concern is that subsection (4) does not clearly give them the defence they require, but as the noble Baroness has so clearly given that assurance on record today, I beg leave to withdraw the amendment.
My Lords, I rise to move a manuscript amendment lodged today, grouped with Amendments Nos. 105A and 105B. Perhaps I may very briefly recount the unhappiness that existed at Committee stage with the whole of the penalty regime—that is, Clauses 33 to 36. A whole host of amendments to those three clauses were put down at the Committee stage and a great deal of debate ensued. It is fair to say that the relative absence of amendments to those three clauses at Report stage reflects the fact that the Government gave us all considerable reassurance at Committee stage with the contents of their code. The code is going to govern the way the penalty provisions work.
That, I think, is a fair statement of the background. My amendments are designed, first, to ensure that the code deals with one particular concern—the warnings sent to those who are subsequently to receive penalty notices. Secondly, they deal with the issue of consultation. I shall refer first to the question of warnings. Clause 36(1) sets out that the Secretary of State,
"must issue a code of practice setting out the matters that he will consider when determining the amount to be imposed in any case by way of civil penalty under this Act".
At Committee stage I made the point, which the Government did not seek to countermand, that this appears only to relate, and literally only relates, to the question of the amount of the penalty. In discussions afterwards I think there was acceptance that we needed to broaden the language of Clause 36(1) to make it quite clear that the code of practice is concerned not only with the amount of the penalties but with the whole of the penalty regime in Clauses 33 to 35. Amendment 105A adds the words,
"the manner of proceeding under sections 33 to 35", alongside the issue of determining the amount of a penalty.
The amendment I put down this morning seeks to ensure that the warning given to those who have transgressed the ID regime is clearly part of Clause 36 and the manner of proceeding. I think I am right in saying that there is no reference anywhere in Clauses 33 to 36 to warning. There is of course long mention of notices of penalty, of appeals against penalty, and so on, but I am particularly concerned about the issue of warning. All those who spoke in Committee were anxious to ensure that the authorities would not impose a penalty until they had given the person against whom the penalty was to be imposed the chance to say what went wrong. Did they fall ill? Did they miss the bus? Is it wrong to say that they did not tip up at the place appointed and give their samples, or whatever else? In effect, it would ensure that the officials who have the task of arriving at the correct penalty do so with knowledge of the relevant facts; that is, that the penalty should not be imposed before the explanation has been heard. Those who spoke in Committee felt that it was not good enough simply to say that there was a right of appeal. People do not want to have to make an appeal where no penalty should have been imposed. Again, it is fair to say that Ministers—I believe that it was the noble Lord, Lord Bassam, who dealt with this matter—were not in any way opposed to the common sense of what was then being advanced.
Manuscript Amendment No. 101A simply inserts a reference to the warning into Clause 33, so that it must be within the purview of Amendment No. 105A. The final amendment, Amendment No. 105B, deals with consultation and says:
"Before the draft code is laid under subsection (4), the Secretary of State must consult with members of the public likely to be affected by the code".
If one looks in Clause 17(5), which deals with checks to be made on the register by public authorities, one finds a comparable consultation provision.
I submit that there is no more sensitive and important aspect of the Bill than the code of practice. It is our reassurance, on these Benches, that the absence of a great deal of the mechanics of the penalties in the Bill is something that we can wear, given a full and fair code of practice. It follows that, if that is correct, it is as important to have public consultation over the code as any other part of the Bill. I shall leave it at that. I beg to move.
My Lords, I support the noble Lord on Amendment No. 101A and the whole issue of the warning. I do not think that it would be right if I repeated arguments on that, as I spoke on that subject in detail in Committee. The noble Lord is right in thinking that there was a feeling across the Chamber that it is not sufficient to say to somebody that there is a method of appeal; if you have not tried to be culpable in the first place, it is error rather than culpability, and one should not have to go through the position of going through a whole legal gamut of appealing to prevent a penalty being imposed.
Amendment No. 105B refers specifically to consultation. I agree with the noble Lord; it is as important here as it is anywhere in the Bill that there should be consultation with the public on these matters. That was certainly brought home to me very clearly when I had a meeting on another Bill last week—the Immigration, Asylum and Nationality Bill—with a group of people who had come together for the first time to express their views about how immigration legislation will affect them. They are representatives of Chinese, Bangladeshi and Indian communities. We had a discussion beyond the remit of the Bill about how consultation is or is not carried out.
Last night, I received from the vice-chairman of the North London Chinese Association an email that is pertinent to the amendment tabled by the noble Lord, Lord Phillips. The vice-chair raises the whole issue of how the Home Office currently carries out its consultation process and what plans it has to do so in future. I thought that it would be right to put on record one or two concerns that those communities have, because I have referred in the past to the race equality impact assessment, and the problems with that in this Bill. The questions that they ask are with regard to the fact that, if the Government are minded to carry out consultations—perhaps on Amendment No. 105A, but generally on the Identity Cards Bill—will they in future ensure that they,
"include a non-compulsory invitation to the respondent to disclose the respondent's ethnic group when someone . . . responds to a government consultation"?
"publish the ethnic breakdown of respondents to consultations", and will they,
"encourage the Home Office to hurry up with the standard list of stakeholders", which they understand that the Home Office is in the process of compiling? They hope that the Government will,
"make positive efforts to include the Chinese community and business associations on it".
That raises the whole issue of how the Government anticipate consultation being carried out. In particular, will they consult on the code of practice with regard to penalties? That is a core issue; there will be a great deal of interest from the public generally and from specific ethnic groups within the community about how they would be affected by the code of practice on penalties. We have already had an indication of that from the CRE earlier in our debates on this measure.
My Lords, not for the first time, we are grateful to the noble Lord, Lord Phillips, for his amendment—in particular, his manuscript Amendment No. 101A to Clause 33, as well as his amendments to Clause 36, which raised some important points that require clarification.
On Amendment No. 101A, we agree that there needs to be a warning before a penalty is imposed, but that this needs to be in the code of practice and not in the Bill. That is where we think it is most appropriate. However, on Amendment No. 105A, we believe that the noble Lord has spotted what we accept is an unintended omission from the Bill. The amendment is designed to widen the scope of the code of practice on civil penalties, which is required under Clause 36, from simply determining the amount to be imposed in any particular case by way of a civil penalty to the whole procedure for imposing civil penalties. That is how we are already interpreting the scope of the code; the initial draft that we issued on
Amendment No. 105B would require consultation on the code of practice on penalties with members of the public likely to be affected before it is laid before Parliament. Again, we have sympathy with the purpose of the amendment. We intend to consult extensively on the code; indeed, as the noble Lord and the noble Baroness would readily acknowledge, we have already prepared an initial draft, which I am sure that many noble Lords have seen. It was placed in the Library on
I hope, having said that, that the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful to the Minister for his helpful reply. I shall make two points. First, the Minister started by welcoming Amendment No. 101A and went on to say that of course the issue of warnings is integral to the whole proceedings under the relevant clauses—and that must be so. But I should be grateful if he would let me know, before I withdraw the amendment, whether the issue of warnings will find a place in the Bill at all. It seems odd that it does not, when it is such a crucial part of the whole mechanism. I do not see how an amendment to Clause 36 will cover the point if there is no reference in previous clauses to warnings. I do not see why it should not be relatively simple for the Government to bring back an amendment, drafted less clumsily than mine, which at least makes that clear.
Secondly, the Minister accepts the importance of consultation. I too accept, and meant to say, that the draft code is already helpful. However, I do not for the life of me understand why the Government think it necessary to have a reference to the need for the Secretary of State to consult under Clause 17(5), but not under this clause. There is nothing more sensitive in public terms than the whole code in relation to penalties. I ask him at least to respond by saying that the Government will look again at the need for consultation under this part of the Bill, just as it already has it with regard to Clause 17. There is a reference to consultation in Clause 16 as well. Subject to those two points, I am a very malleable chappie, and I am inclined not to press the amendments.
My Lords, I am interested that the noble Lord thinks he is malleable. I have not noticed him being putty in our hands before. He is a very agreeable noble Lord, as is the noble Baroness, to deal with on practical matters.
On the first question he raised, the issue of warning letters will not be dealt with in the Bill in the way he would like to see, but it will be incorporated as a matter of procedure in the code. We think that is where it is most appropriate, and that is how we intend to deal with it.
On his second point, the consultation requirement is in Clauses 16 and 17 because there will be representative bodies of users of public services who would be appropriate to consult; for example, education and health interest groups in particular. But which members of the public are likely to be affected by the code of practice on civil penalties? Perhaps it is those who intend as a matter of misguided principle, one might say, not to comply with the provisions of the Bill. I cannot accept that special arrangements must necessarily be made to consult with those who intend to defy the law.
The code will of course be laid before Parliament—as I said earlier on the website, so people can look at it carefully there—and we think that is sufficient. There will be ample scope for consultation within the framework we have set out. It will be extensive, and it is our intention to reach out to those groups who would otherwise ordinarily feel excluded from consultation, because we need to have their views on the way these procedures and penalties would operate.
My Lords, I am grateful for that further explanation. I really do not understand the line of reasoning that says because the whole public are affected we cannot have consultation, but we do so where a lesser part of the public is affected. I am going to express my dissatisfaction on this aspect of the consultation, not move the matter to a vote now, maybe have more discussions and see where we get to. I am very ready to see what you come up with—I'm sorry, what the Government come up with regarding the way Clause 36 is drafted. I beg leave to withdraw the amendment.
My Lords, I thought the noble Lord had disposed with the group that started with amendment No. 102. All the previous four amendments were not called, which leaves amendment No. 106A at the end of that group. Was it the noble Lord's intention just to debate that specific amendment? I think it related to Amendment No. 106, but I might be wrong.
My Lords, I think there is a bit of a muddle here in the groupings. Government Amendment No. 106 is in a separate group on its own, and my amendment No. 106A obviously relates to Amendment No. 106. I do not believe we have debated Amendment No. 106.
moved Amendment No. 107:
Page 32, line 37, leave out "authorised by subsection (1) is exercisable" and insert "that he is authorised to make by subsection (1) is exercisable—
On Question, amendment agreed to.
moved Amendment No. 108:
Page 32, line 39, leave out "only" and insert "and
(b) on every subsequent occasion on which it appears to the Secretary of State that the power is being exercised for purposes that are not confined to the modification of existing fees to take account of changes in the value of money, only"
On Question, amendment agreed to.
Clause 40 [Amendments of legislation relating to passports]:
moved Amendment No. 109:
Page 35, line 10, leave out "authorised by this section which modifies" and insert "that he is authorised to make by this section for modifying"
On Question, amendment agreed to.
moved Amendment No. 110:
Page 35, line 12, at end insert—
"( ) A statutory instrument containing an order which—
(a) contains provisions that the Secretary of State is authorised to make by this section, and
(b) is not an order a draft of which is required to have been laid before Parliament and approved by a resolution of each House, shall be subject to annulment in pursuance of a resolution of either House of Parliament."
On Question, amendment agreed to.
moved Amendment No. 111:
After Clause 40, insert the following new clause—
"PROOF OF IDENTITY
(1) A passport issued to a British national by the United Kingdom Passport Service shall be proof of that person's identity.
(2) The United Kingdom Passport Service shall issue upon request to any British passport holder an identity card ("British National Identity Card").
(3) The British National Identity Card shall contain within it all information held in a United Kingdom Passport.
(4) The British National Identity Card shall be accepted as proof of identity by any Government department or agency.
(5) All other forms of proof of identity shall be secondary proof of identity to the United Kingdom Passport and the British National Identity Card."
My Lords, it gives me great pleasure to move this amendment in this, the 100th anniversary of the Labour Party. I was sorry not to be invited to that great occasion, but I wonder, as history passes by, whether this legislation will be deemed to be groundbreaking or backbreaking. As I said to the Minister the other night, I think we are all on the same side, but we are all confused from different levels. I believe that people in this country accept the value of an identity card. Having accepted that, it is only a question of what identity card, and for what purpose. This is effectively the purpose of my amendment.
I moved a similar amendment before, and withdrew. I also moved an amendment where there was a certain bit of confusion, but I wish to go back and say that the Minister and I start from opposing sides of the world. I start from the ultimate proof of identity—the passport. Having asked her if she would reconfirm the Answer I have had before to a Written Question, I would like to read it out:
"The United Kingdom Passport Service, an executive agency of the Home Office, issues passports to British nationals in the UK. British passports are issued at the discretion of the Secretary of State by exercise of Royal prerogative, in line with the British Nationality Acts. A passport is issued only after an applicant's nationality status and identity has been confirmed, and is accepted throughout the world as proof of these".—[Hansard, 22/6/04; cols. WA 121–22.]
The passport, therefore, is the ultimate identity card. There is no stronger identity card, none more valued, and it should not be replaced.
We came afterwards to a certain little argument about what words should appear, and what name. I moved an amendment, which I withdrew, that the name should be as recorded in his passport, or in the form required for a passport. At that time, the noble Baroness did not quite agree with us and there was a rather amusing debate when we all accepted that none of our names would qualify.
I apologise to the noble Lord, Lord Stoddart of Swindon, as the other day I made a mistake. I was overwhelmed and forgot my lines. I called him "the noble Lord, Lord Swindon". In 18 of the 22 countries of the EEA, his last name is Swindon and, therefore, that is his last name. He pointed out in the debate that he was sometimes known as "Lord Stod of Swin". I am an "of" but the last bit of my name—"Croydon", of which, being a Scot, I am not desperately proud—does not appear in my passport because it is not a registered name. We went through some confusion, but the noble Baroness satisfied us in one of her notes—I was the only one in the Chamber who received it—which said that they we