Identity Cards Bill

Public Bill Committee, 27 January 2005.

Standing Committee B

Identity Cards Bill

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move,

That the Order of the Committee of 18th January be further amended by the substitution, in the Table in paragraph (3), of ''6.30 pm on Thursday 27th January'' for ''5.30 pm on Thursday 27th January''.

I understand that a copy of the motion has been circulated to members of the Committee. It is an amendment to the previous order, the effect of which is that we shall sit for one further hour this evening before the last knife on our deliberations. It has been discussed informally and agreed by all parties. The reason for the amendment is that we made much progress on Tuesday afternoon, but there is still a significant amount of work to be done, and we should give ourselves the best possible opportunity to scrutinise the remaining parts of the Bill before we terminate our deliberations.

I take advantage of this opportunity to draw attention to the fact that I have written to you, Mr. Conway, and copied to members of the Committee a short letter that deals with the three outstanding points that I was unable to answer fully on Tuesday afternoon. The letter is dated 26 January and I made considerable efforts to ensure that it was available to members of the Committee yesterday evening. A copy of it is to be placed in the House of Commons Library.

Humfrey Malins (Conservative, Woking)

We are grateful for the letter that the Minister has supplied and thank him for his courtesy. We accept that it is always difficult when a Committee is in progress to deal with a query in a letter that can be received by members of the Committee in time for consideration at the next sitting. It puts huge pressure on the Minister. It is often considered that all the pressure is on the Opposition parties, but a great deal of pressure is often placed on the Minister.

We cannot object to the programme motion, but it is worth my pointing out that we will have to debate and scrutinise fully something in the order of 20 clauses, from clause 26 onwards, between our start after lunch and our conclusion. Give or take a bit, that is half the Bill and it is difficult to imagine that amount being debated fully in only one sitting of the Committee. Moreover, we must not only deal with those clauses, but discuss the important schedule 2, new clauses 1 and 2 and the new schedule. That will be extreme difficulties but, having said that, the Minister has been kind enough to amend the order to provide us with an extra hour for our discussions. Of course, an hour is not adequate, but it is certainly a move forward, to which Conservative Members cannot object and for which we are grateful.

Question put and agreed to.

Clause 20 - Further uses connected with the

Geoffrey Clifton-Brown (Conservative, Cotswold)

I beg to move amendment No. 211, in page 18, line 43, leave out subsection (3).

I, too, welcome you to the Chair, Mr. Conway. We have a great deal to do this morning, so I want to be very brief in my introduction to the amendment, which relates to clause 20. That is an important clause because it is about what the Secretary of State may do without an individual's consent. It becomes a very serious matter when the state takes powers to do things without such consent. Subsection (3) is very complicated, and the amendment is designed to probe the Minister about what it means.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

This amendment is helpful. Like other Committee members, I have worked through the clauses and the explanatory notes to try to understand the exact scope of this clause. It is difficult and complex.

To what extent are we talking about only the provision of information to people overseas? To what extent would that broaden the scope of our previous discussion on clause 19 about allowing information to be disclosed to other people and agencies in the United Kingdom, separately from the scope of that clause? We would like to discuss such issues more generally in the clause stand part debate.

During our discussions on this amendment it would be helpful to be given a greater understanding of the precise scope of the provisions in the Anti-terrorism, Crime and Security Act 2001. Does the Minister see the clause as being specifically about the disclosure of information from the identity register to people abroad for overseas proceedings, or as applying more broadly?

Explanatory notes are usually very helpful. However, paragraph 132 of those for this Bill pretty much repeats the wording of the clause, and does not leave us any more enlightened. It also has an interesting variation on the spelling of ''overseas''—it spells it ''oversees'' twice. It is important that we get a statement from the Minister on the precise intention of the clause. Clearly, people will have additional concerns about the provision of data held by the UK Government to people overseas; when such data goes overseas, it will not be under the same control mechanisms as when it is held in the United Kingdom only. That is a natural area of concern, which I hope the Minister will clarify in his response.

Humfrey Malins (Conservative, Woking)

I have little to add, save that my hon. Friend the Member for Cotswold (Mr. Clifton-Brown) is entirely right. We are dealing with an important clause about the provision of information without the consent of the individual, an issue to which we shall no doubt return during the stand part debate.

Like the hon. Member for Sheffield, Hallam (Mr. Allan), I had spotted the mistake in the spelling of ''overseas''. I am afraid to say that, having read subsection (3) and paragraph 132 of the explanatory notes two or three times, I was very little the wiser. The amendment would omit subsection (3), on which we seek a full explanation from the Minister. Paragraph 132 is helpful in that it draws our attention to the ability to prohibit the provision of information without consent for use in overseas proceedings.

I shall make two points, to which I hope the Minister can respond. What sort of overseas proceedings are we talking about? Would they be those that deal solely with criminal charges and the like, and would the provision apply to every other country in the world? Will the Minister focus a little on the issue of control?

It is not unknown for certain matters not to be able to be published in our own press in this country, because of our domestic laws. That is very proper; matters might be subject to privilege or injunctions. Nevertheless, no such provision can extend to foreign websites and newspapers. Sometimes a person otherwise protected from the provision of information in this country, finds himself totally unprotected because it can be provided abroad. It would be helpful if the Minister took us through examples of what subsection (3) means, and we look forward to hearing from him.

Des Browne (Labour, Kilmarnock and Loudoun)

This is an important clause. I will try to contextualise it and I may stray into a broader debate than the amendment demands. My comments can be carried over into the clause stand part debate if appropriate.

The clause sets out the relationship between the Bill and another important piece of legislation, the Anti-terrorism, Crime and Security Act 2001. Specifically, the clause deals with how information from the register could be provided without consent for the purposes set out in that Act. Therefore, it is not restricted to the provision of information to overseas authorities, although that is the issue on which the amendment has concentrated.

To understand subsection (3) one must understand the context. Section 17 of the 2001 Act was enacted to ensure that public authorities could disclose information that was otherwise subject to statutory restriction on disclosure for the purposes of a criminal investigation or criminal proceedings.

Under section 17(2) of the 2001 Act, information that is subject to a statutory bar may be disclosed for the purposes of carrying out, initiating, bringing to an end or facilitating a determination of criminal investigations and criminal proceedings in the United Kingdom or elsewhere. That answers the hon. Gentleman's query about the sorts of proceedings. The 2001 Act restricts provision to those purposes I mentioned.

Clause 20 of the Identity Cards Bill ensures that information can be provided without consent for the purposes specified in the 2001 Act, provided the rules in clause 23 of the Identity Cards Bill are complied with. I will discuss those rules in due course. Subsection (3) would allow the Secretary of State to give a direction prohibiting the provision of information for use in specified overseas proceedings. That is a limitation on the power that exists in the 2001 Act and it mirrors the corresponding power in section 18 of that Act. All we have sought to do in subsection (3) is mirror the restriction and I will come on to give one example of where the restriction might be applied. The effect of the amendment would be to remove that power and that restriction.

The grounds on which the Secretary of State might prohibit information from being provided for overseas purposes under section 18 of the 2001 Act include where the Secretary of State considers that it would be more appropriate for any jurisdiction or investigation to be exercised or carried out by a court of the UK. Where, for example, the Secretary of State takes the view that it would be more appropriate to proceed with a prosecution in the UK rather than abroad, the Secretary of State can quite rightly withhold that information from the authorities abroad, so that it does not facilitate a prosecution. They are exactly the sorts of circumstances in which I think hon. Members would want the Secretary of State to be exercising such a power.

That simple response answers the point that was raised, although hon. Members might want to explore it further.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I can see exactly what the Minister is trying to do. His final remark was that he thought that hon. Members would want this power. Immediately, something set my mind thinking. What if we were faced with the opposite situation, where a foreign Government were withholding information so that we could not prosecute someone who had committed a crime in this country? I am not sure that we would be happy about that. I am a little worried about the power. There is clearly a difficulty of the jurisdiction and where the prosecution takes place, but this is an important matter about which we must think carefully. Perhaps the Minister will give it further thought.

Des Browne (Labour, Kilmarnock and Loudoun)

I always listen with care to the hon. Gentleman's contributions and I will of course give it further thought. The clause is entitled to facilitate the disclosure of information in a context that Parliament has already legislated for in the 2001 Act. It is entirely appropriate that the Bill should be consistent with the qualifications in that Act. It would be inappropriate to have inconsistent legislation. The whole purpose of subsection (3) is to mirror properly in the Bill the restriction in the 2001 Act. I can think of many reasons why we, as a sovereign Government, would want to be able to exercise that power. I can also think of many reasons why other Governments would not want us to; but that, of course, would be a matter for relationships and discussions between Governments, and it is quite right that it should be. It would be entirely inappropriate if the Secretary of State was required to give such information in those circumstances.

Consequently, it is right that the Bill contains provisions to ensure that it is consistent with the 2001 Act. That is a clear explanation of what we are doing. I invite the Committee to reject the amendment. In fact, I ask the hon. Gentleman to withdraw it.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

This is an important clause in terms of how it relates to clause 19, the clause on which we ended our discussions on Tuesday evening. It is important, under this part of the Bill, to test the Government's intentions in respect of paragraph 9, schedule 1 information; in ordinary English, that is the provision dealing with the personal or audit trail, showing all the times that the identity register has been checked. That is potentially the most personal data held in the system, allowing people to track a person's movements and the kind of interactions that they have had.

We have to remember that the audit trail may include lots of interactions with public services, border control interactions and any interaction with the police or law enforcement agencies. Under the provisions that allow the identity register to be used by commercial entities, the audit trail may also include things such as registering for a new mobile phone contract and opening a new bank account. All that information will, I assume, be stored as audit records under paragraph 9 of schedule 1.

This is what I am seeking to tease out from the Minister: clause 20, as it interacts with clause 19, seems to suggest that there will be hierarchies of suspicion that allow paragraph 9 of schedule 1—the audit trail information—to be disclosed. The clause seems to put in a serious crime threshold for certain bodies, and we sought to debate that under clause 19.

John Taylor (Conservative, Solihull)

I endeavoured to regale the Committee with my recent experience of buying a new motor car. I had to produce a passport; I think that that may have had something to do with money laundering. I wonder whether the hon. Gentleman would care to say, in his excellent review of the situations covered, whether my experience is instructive.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman is entirely correct. In our earlier debates, we discussed the issue of money laundering regulations. They may be the Trojan horse that effectively introduces compulsion into the carrying and use of an identity card, because anti-money laundering legislation will have a cascade effect. It will mean saying to organisations, ''If you want to be sure that you are complying and that you will not be prosecuted, you must perform certain checks'' but, in a sense, the only acceptable form of check would be the identity card. If that becomes the case, and the identity card comes to be in regular use for all kinds of routine financial transactions, the audit trail will effectively include a record of the fact that a person carried out a financial transaction with a particular body on a particular date. That is potentially very intrusive.

John Taylor (Conservative, Solihull)

I am grateful to the hon. Gentleman for giving way to me yet again. To pick up on remarks made in an earlier sitting by my hon. Friend the Member for Cotswold, does that not show that the use of the identity card will not be driven merely by its necessity for accessing public services, but will be further driven—to an extent as yet unknown—by its necessity in engaging in private contracts in the private sector?

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman puts his point effectively. We can assume that those data will be available.

I would like to clarify my reading of clause 20—subsection (4) in particular—with the Minister. He has already put his case for why the security services, which are those bodies set out in clause 19(2) and might be called the spook element, should have comprehensive access to data. He describes their comprehensive statutory functions and the fact that they will have access to the audit trail data and everything in the register at all times for the broad range of purposes that have been set out.

Those who will have access to the broad identity data in all circumstances are listed in subsections (3), (4) and (5). They are the Departments or the money people—whatever they are going to be called after the merging and reorganising of Customs and Excise and the Inland Revenue—and chief officers of police. We now know that that will include some of the Channel Islands as well, although the Alderney question is hanging over us. I do not know if that has been answered.

Those people will have access to the generality of the identity data under all circumstances, but my reading of clause 20(4) is that they will have access to the audit trail data only if they are investigating serious crime. I am trying to understand how that restriction will work in practice. It seems curious that we have this wording in clause 20(4), but clause 19 (3), which is about the police, and subsections (4) and (5), which are about Customs and Excise and the money people, all have similar wording excluding paragraph 9 of schedule 1. Can the Minister clarify whether his intention is for the two clauses to interact to say that those people have restricted access under clause 19, which is then clarified in clause 20? It seems oddly structured, rather than have all the powers defined in one clause, to have brought them into clause 20(4).

The other area of interest here, which has not yet been discussed, is clause 20(2), which again makes reference to the exclusion of the personal audit data of paragraph 9 of schedule 1. I want to clarify the intention here. Clause 20(2) says

''provision of . . . information not falling within paragraph 9 of schedule 1 is authorised by this section''

and then talks about the anti-terrorism, crime and security elements that we have just discussed. Is it the intention, therefore, that the audit data will never be disclosed under these 2001 Act provisions?

Subsection (2) seems to suggest that a if public body is able to disclose information under the 2001 Act, it will not include the paragraph 9 of schedule 1 information. If someone needed to get hold of that, it would have to be disclosed under clause 19 and clause 20(4) powers. I am trying to understand the matrix of clauses 19 and 20—the net effect for the system as to when this potentially very comprehensive and very personal data might be disclosed.

Another point that it might be helpful to have clarified is the scope of the audit trail. We have discussed the audit trail: I can understand why the Government are damned if they do and damned if they don't, as not having one is problematic while having one is potentially intrusive.

Again, to understand the scope of that audit trail, it would be helpful to know what data are to be disclosed under subsection (4). Will they form a whole-life record? That is the key question. Are we saying that from the moment somebody gets an identity card, which is going to be fairly swiftly if the Government have their way, the audit trail will be kept for whole of life? If at no point will it be deleted as historic data, the data that can be disclosed under clause 20(4) will be potentially intrusive and comprehensive. The public ought to be aware of the extent to which those data will be kept and the circumstances under which they may be disclosed.

Humfrey Malins (Conservative, Woking)

I would like to make one point—a general one—which was put to me by the Commission for Racial Equality. This is its view, so it is appropriate that I mention it in the clause stand part debate, although it covers other clauses, too. It is important that the Minister knows that the CRE is concerned that in the current anti-terrorism climate, the disclosure powers—combined with increasing racial or religious profiling—provide the opportunity to target particular groups or categories of person. It reminds us that the stop-and-search rate for black and Asian people under section 44 of the Terrorism Act 2000 is between four and five times higher than that for white people.

Also, the commission is concerned that Muslims may be over-represented in those data and fears that there may be racial profiling of suspected terrorists or targeting of the Muslim community, particularly by the police and intelligence services. It believes that it is essential that threats posed by a few individuals do not translate into measures that, especially since 11 September, are perceived as being targeted exclusively on Muslims or on any other racial or faith community. It wants safeguards to be in place to ensure that the practical use of the national identity register by prescribed agencies reflects that.

It is a regular procedure in the House that interest groups express their concerns about certain issues to Members and I thought it my duty to pass on those points to the Minister. This clause is very important; it is potentially extremely intrusive on the lives of individuals in this country. As my hon. Friend the Member for Cotswold has said, we are discussing a situation in which there is no consent from the individual and disclosure of information by the Home Secretary to a variety of bodies—home security services, the police, the Inland Revenue, Customs and Excise. It is my understanding that any information is authorised to be disclosed to the security services if it is in connection with their functions and that information provided to the other agencies is acceptable if it is in the interests of national security or the prevention or detection of crime, or for other reasons that the Home Secretary will specify by order. If that is right, perhaps the Minister will talk to us about those other reasons.

The most troubling aspect is in paragraph 9 of schedule 1. We return to it time and again, and the hon. Member for Sheffield, Hallam is entirely right to draw our attention to the problems with it. If one is searching for wording that is not plain English and that needs to be carefully analysed to decide what it means in practice, one need look no further than paragraph 9, which is very important. It states:

''The following may be recorded in the entry in the Register for an individual—

(a) particulars of every occasion on which information contained in the individual's entry has been provided to a person''.

What does that mean? Does it mean that every single time any information about me is provided to anybody, that has to be—or can be—recorded in the register? Does sub-paragraph (b) mean that every single time such information is provided, a note will be made on the register of to whom it has been provided?

I am especially concerned about sub-paragraph (c). It refers to

''other particulars, in relation to each such occasion, of the provision of the information.''

What on earth does the word ''particulars'' mean in that context?

That brings us on to the whole issue of what some briefing papers call the audit trail and the clause's potentially intrusive nature with regard to my life. Let me explain my understanding of it. The Minister would do well to confirm or deny it, because there are those outside the Committee who will want to know what is kept on the register, and who has access to it and for what purposes. I understand that in due course my register entry will have been set up, but my identity card may or may not replace my passport. Will he confirm that every time I travel using a travel document, that fact will be noted on the register and I will, in a sense, be followed in an audit trail with the facts being noted on the register and accessible by other people for various purposes?

Will the Minister tell us, particularly in relation to the words

''other particulars, in relation to each such occasion, of the provision of the information'',

not only who will have access to all that, and in what circumstances and for how long, but which activities of mine could possibly be on the register and which of the various bodies will have access to the information?

I assume that I will get my card on a certain date, having first been on the register. For the sake of the debate, let us say that I am 35. The hon. Member for Sheffield, Hallam asked for how long the audit trail will continue. Will it continue to my death, perhaps 50 years later? By then, what information about me will have been built up on the register? Virtually all my business and domestic activities, and my travel, will be on there for people to access. Is there a cut-off point, after a certain number of years, when this information will be deleted?

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend is well versed in these matters. What is the current procedure if the police investigate a serious crime—perhaps involving national security—and somebody is investigated who subsequently proves to be totally unconnected and innocent? Are records kept for ever more? If not, why are these records to be kept?

Humfrey Malins (Conservative, Woking)

My hon. Friend raises an interesting point on the distinction between crime in relation to national security—we all understand that the Bill relates to terrorism—and other crime, ranging from the lowest sort to some crime encompassed by these provisions, which is more serious.

If, for example, my hon. Friend were charged with a grave offence, God forbid, notwithstanding the fact that he was acquitted unanimously by a jury in the Crown court, records of that charge would certainly be kept, although he would leave court without a stain on his character. To that extent, in relation to terrorist matters, the record would be kept and there would be an existing audit trail.

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend slightly misunderstands what I am probing for. If the police eliminated me completely from their inquiries, there would be no record of my involvement, because I had nothing to do with the crime. However, under this procedure, the information will be sought and put on the register, and we do not know how long it will remain there. That is the difference.

Humfrey Malins (Conservative, Woking)

I was obtuse. It was too early in the morning for me to spot exactly what my hon. Friend was saying, but I understand now. Of course, if he was utterly cleared under the current law and everyone found out that he had nothing to do with the crime, that would be the end of the story and no records would be kept.

The Minister may want to confirm that we are moving toward a provision under which the scenario advanced by my hon. Friend as to a record being kept may apply to the new register and identity card information. That has not hitherto been so and is yet another relevant example.

I was not able to mention my next point when we concluded our deliberations on Tuesday, because we rushed through a number of clauses and were unable to debate them at length. My right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, and others on the Conservative Benches will continue to express their worries about the effect of the Bill on civil liberties, individual freedoms and the over-mighty state. The clause and subsequent clauses provide a golden opportunity for the Minister to speak at length—I do not want a short reply—and satisfy the Committee that our worries and those that have been expressed by people outside the building about civil liberties and intrusiveness can be met.

My right hon. Friend the shadow Home Secretary said on Second Reading that civil liberties is one of the important tests that the Government need to meet. I am bound to say that, from what I have seen so far in the clauses and in the absence of a full explanation of paragraph 9 of schedule 1, my worries remain distinct.

Patrick Mercer (Conservative, Newark)

Without referring specifically to cases that are in and out of court and in the public eye at the moment, will the Minister relate clause 20 to our present circumstances? I am talking about bringing British citizens back to this country from a period of detention abroad where they were uncharged and untried and, simultaneously, the new control measures to which the Home Secretary referred when it seemed that terrorist suspects were to be released into the community. Indeed, some may be sent back to their countries of origin, while others will be kept under a type of house arrest or, perhaps, even tagged. How much clause 20 will bear on those three different measures will clearly be important in the future.

Will the Minister reflect on subsection (3), which

''shall have effect in relation to the provision of a person with information by virtue of subsection (2)'',

particularly in respect of overseas purposes? The hon. Member for Sheffield, Hallam drew attention to the sudden inclusion of the words ''serious crime'' as opposed to ''crime''. I should be grateful if the Minister would relate that to the present circumstances, as it will concentrate our minds in the future. My argument is based on the point made by my hon. Friend the Member for Woking when he spoke about the views of the shadow Home Secretary on the importance of civil liberties and how such matters will bear on that.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I had not intended to speak to clause stand part, but the interaction between my hon. Friend the Member for Woking (Mr. Malins) and the hon. Member for Sheffield, Hallam—and the interaction between clauses 20 and 23—could give rise to serious problems about civil liberties. We must be proportionate, and clearly the state has to take powers to deal with serious crime, but, as has been pointed out several times this morning, the use of information can take place without an individual's consent. When we consider clause 20 and the requirements that must be satisfied under clause 23, it seems that senior officers of the new Serious Organised Crime Agency have to say to the Secretary of State only that they have serious concerns about a person and the Secretary of State will make an order.

Humfrey Malins (Conservative, Woking)

My hon. Friend refers to the security services saying that they have serious concerns. Nowhere in the Bill do I see the fact that the Secretary of State must then say to the security services, ''Prove your serious concerns. Don't just come fishing, tell me what they are so that I can make a judgment on their merits''. There seems to be no provision by which to judge the merits.

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend is absolutely right. Perhaps the Minister will comment on that. It is a significant and serious point.

I will give the Committee two examples where I would be concerned about the use of the powers. I have already shown concern about the first in my intervention on my hon. Friend. It relates to people who are totally innocent but who are connected to someone who might be a terrorist. Supposing that, on a Thursday morning, a terrorist goes to collect his shopping from somebody but they are being watched. That somebody would be totally innocent in relation to the activities of the terrorist, yet an inquiry would be made and an entry would be made on their register.

My second concern is association. I do not wish to cast any aspersion on any particular religious group. Supposing there were a religious group—let us not even name the type of religious group—and certain individuals within it were suspected of terrorist activities. The powers might be used to get information on every person who went quite innocently to that religious gathering. Again, there would be an entry in the register for that purpose.

It would not be quite so bad, and I would not have quite such concern, if the Minister could assure us this morning that the entries on the register are sunset provisions, so that when somebody is totally cleared of having any association with a crime, the entry is removed. There could be a build-up of someone's entries. If there are a huge number of entries and someone examines them and says, ''Oh gosh, this person has been inquired about an awful lot of times,'' they might start to be investigated for no particularly good reason. The phrase ''fishing expeditions'' has been used this morning and I am concerned about the state going on such expeditions into ordinary citizens' lives.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman makes a useful point about the potential effects of someone having had checks made against them, their being on the register and that leading other people to grow the cloud of suspicion around them. Does he agree that it would be helpful for the Minister to clarify whether checks that are made without consent under these kinds of provisions—clauses 19 and 20 and so on—would also be recorded in the audit trail? We know that other checks will be recorded in that trail. It would be helpful to know whether the without consent checks will also all be specifically recorded.

Geoffrey Clifton-Brown (Conservative, Cotswold)

The hon. Gentleman makes a good point and it is one of a number to which I would like the Minister to give an answer.

My final query is whether there are any circumstances in which information that has been acquired without an individual's consent can be used in court proceedings. We need to know in what circumstances the information can be used subsequently.

Des Browne (Labour, Kilmarnock and Loudoun)

I will endeavour to give as full a response as hon. Members would wish on this important matter. The debate has been broader than the provisions of clause 20 and I understand that.

I remind hon. Members that the clause is intended to set out the relationship between the Bill and the Anti-terrorism, Crime and Security Act 2001, which this Parliament has already passed. It is part of the law and, as I said earlier, it is the Government's intention to make the provisions of the Identity Cards Bill entirely consistent with that existing legislation and the clause seeks to do that.

It is probably best to start this more detailed contribution where I think the hon. Member for Sheffield, Hallam did, and to discuss the ''damned if you do, and damned if you don't'' circumstances. The Government are mindful that the use of the cards, the recording of their use and the recording of information relating to their use or the extraction of information from the register must be recorded. There is no question but that, for the civil liberties of individuals, for data protection reasons and for many other reasons, all of which I think we would subscribe to, it is crucially important that the register records the use to which it has been put in respect of an individual. I would want to be able to know who had access to the information on me, and that must be recorded.

I accept that there are certain circumstances, such as in the investigation of serious criminal matters, in which it would not be in the public interest for the individual to get that information, and the Bill reflects that; exceptions are made for that. However, it is important that the necessary oversight of the scheme allows the relevant commissioner—and that includes the intelligence services commissioner, whom we are about to discuss under the Bill—access to the audit trail so that they can oversee the use of the information. So the collecting of the information is important for the purposes of securing individuals' liberties. I do not think that there is any disagreement about that.

The next question is how long that information should be held. Obviously, information could be misinterpreted, but we ensure that that does not happen by providing for oversight by the commissioners, rather than by inappropriately deleting data so that information about exactly how the records have been accessed is destroyed and therefore cannot be audited in future. Therein lies the rub. The answer lies in the Bill, and I shall come to that later.

Geoffrey Clifton-Brown (Conservative, Cotswold)

If one was standing in the commissioner's shoes, and there was the slightest doubt as to whether information could have any useful purpose in future, one would be bound to come down on the side of retaining that information. That is the point. Someone in that official capacity is bound to do that. Whether that is the correct thing to do on civil liberties grounds is a totally different question.

Des Browne (Labour, Kilmarnock and Loudoun)

The scheme is structured so that the retention of that information is subject to a very important qualification set out in clause 3(4), a clause that we have already agreed should stand part of the Bill. It specifically says:

''Information, once entered in the Register, may continue to be recorded in the Register for so long as it is consistent with the statutory purposes for it to be so recorded.''

That is entirely appropriate phraseology, and an entirely appropriate set of circumstances for the commissioners to operate within. It would be inappropriate for me, as a Minister, to seek to define what may continue to be recorded in advance by giving some sort of time limit.

Humfrey Malins (Conservative, Woking)

We understand that the Minister cannot put a time limit in the Bill, but he will understand why we raised the issue. Could he give us examples of the sort of situation in which he envisages that the information might be deleted?

Des Browne (Labour, Kilmarnock and Loudoun)

An example of when it might be deleted would be a situation in which the information was no longer of relevance, for the purposes of the Bill.

I have been asked to comment on information recording the fact that security services or police services—agencies of that nature—have accessed information under the powers in the Bill. The concern of the hon. Member for Cotswold was that an individual's record might be accessed on a number of occasions. Let us say that access was justified in terms of the circumstances in which the application was made, and let us say that the relevant tests were passed, but that the search turns out to be fruitless. The information might have been needed to prove a person's innocence, if nothing else, and we hope that it might prove that, in certain circumstances. The recording of that access might, over a number of occasions, build up to a suspicious entry.

I understand why the hon. Gentleman puts that point forward but, in relation to an individual's civil liberties, I would much rather that such information was preserved. I can see arguments why deletion of that information would give a false impression of the way in which an individual's information had been accessed. Once it was deleted and lost, the fact that information had been abortively accessed on a number of occasions would be lost, and that might be just the sort of thing that a commissioner would want to comment on. For clear and understandable reasons, I am not prepared to set out now the parameters for when that information should be stored or deleted. That will develop over time, and it will be a matter for the commissioner.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Minister has correctly referred us back to clause 3 and the statutory purposes. However, they include the lower level threshold of the prevention and detection of crime, and the inference might be drawn from that that information in relation to that very broad category of the statutory purpose of the prevention or detection of crime could be held for as long as is possible under the statute of limitations.

I hope that the Minister will be able to give more assurances on that in later stages of our deliberations. We know that discussions of those kinds of issues take place; for example, in the context of the regulation of investigatory powers, there is a debate between the Home Office and law enforcement officers about what is proportionate and necessary. The public will want more clarity than, ''We can't really set any kind of framework at the moment.''

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, I have not said all that I intended to say on this matter.

Geoffrey Clifton-Brown (Conservative, Cotswold)

It is not often that I fundamentally disagree with the Minister, but I do fundamentally disagree with him on this point. Let us take my example of the terrorist who collects his shopping from a lady who is proved subsequently—even on the same day, perhaps—to be totally innocent. Surely, her entry in the register should be deleted as soon as possible? To broaden the point, when an entry is put on the register, will there be any mechanism to record the result of that inquiry? If that woman's entry remains on the register, surely it should be recorded that the matter was followed up, but that she was found to be totally innocent.

Des Browne (Labour, Kilmarnock and Loudoun)

There is a fundamental disagreement between the hon. Gentleman and me on this. If I was that totally innocent individual who happened to be near to a person who was perceived to be a serious threat to this country, in circumstances that justified access to my entry in the register to establish my identity because there were grounds for suspecting that I might have been involved in a serious crime, and that access established or helped to establish that I was entirely innocent, that is the sort of information that I would want to be preserved on the register, so that at some time in the future a commissioner might be able to say that that occasion of access happened. That is exactly the sort of thing that, for the protection of my liberty, I would want to be recorded. It is also exactly the sort of thing that would reassure those people from ethnic minorities or religious groups who have concerns, because it would allow an accumulation of information to show whether there were trends of access, and that would allow a commissioner, or the intelligence services commissioner, to comment on whether there had been inappropriate use of the information on the register.

I fundamentally disagree with the hon. Gentleman about this matter, but I understand that it does fall within the ''damned if you do, and damned if you don't'' category. That is a consequence of having a register of this nature, with the powers that we already give those whom we charge with the serious responsibility of investigating and preventing serious crime.

Humfrey Malins (Conservative, Woking)

This is an important debate, and I have a specific question for the Minister. Does

''uses connected with the prevention and detection of crime''

extend to uses in relation to the prosecution of a criminal offence? If I was appearing in the Crown court and I had as a defence an alibi for a particular date, would the prosecution be entitled to seek from the register rebuttal evidence as to where I was on that date—for example, whether I was abroad or not? I repeat that that is a specific question.

Des Browne (Labour, Kilmarnock and Loudoun)

The prosecution, like the defence, would be entitled to refer to the register to establish an alibi, for example. If that information were preserved in the context of a criminal prosecution, I would think it entirely appropriate that it could be accessed. However, it could not be accessed willy-nilly. There would have to be reason to believe that such an investigation would reveal information that would be of assistance, just as there are rules on the disclosure of evidence in all criminal proceedings. In criminal proceedings, we seek to establish a person's guilt to a very high standard of proof. If there is evidence that can establish a person's innocence or guilt, that should be made available, subject to the appropriate qualifications and restrictions.

I move on to the provisions of paragraph 9 of schedule 1. The hon. Member for Sheffield, Hallam asked what sort of particulars would be recorded in the register. There would be an audit trail; the register is designed to record audit-trail information. I have no particular concerns about my or anyone else's understanding of sub-paragraphs (a) and (b). Of course, other particulars could be recorded, such as what individual in an organisation made an inquiry allowed under sub-paragraph (c). That qualificatory information and any other that makes clear the nature of the inquiry may be recorded so that that inquiry can be properly understood, not least by the person to whom the register entry relates.

I have already dealt with the issue of the length of detention. I must admit that I fail to understand the concern of the hon. Member for Woking concern about religious profiling, although I understand that he raised it as a third-hand issue. No record will be made of people's religion as a registrable fact in the register. It will not allow people to do religious profiling; that is not the intention and there is no power to record people's religious affiliations.

Humfrey Malins (Conservative, Woking)

I should like to correct the Minister. He has properly addressed the issue, but I do not think that he intended to say that such concerns were necessarily mine. I made it absolutely plain that I was putting forward concerns expressed to me for his comment. I am grateful to him for commenting on them.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Gentleman.

The hon. Member for Sheffield, Hallam asked about the interaction of clauses 19 and 20. In so far as I understood him, and I think that I did understand him clearly, his interpretation of the two clauses was correct. Subsection (4) would allow

''The provision of information falling within the provisions under paragraph 9 of Schedule 1'',

which is about the records of information provided from the register. It would allow the provision of such information to the police, the Inland Revenue, Customs and Excise and Departments. Provision of such information could also be authorised for criminal investigations or proceedings, but only if it were for purposes connected with the prevention and detection of serious crime. That will allow a higher threshold to apply when the information provided relates to an individual's use of an ID card, rather than to what might be called static information, such as names, addresses and other information clearly about identity.

That information may be provided to certain persons under other clauses, of course, and it is right to give the example of the security services, which are mentioned in clause 19(2). That clause is needed to ensure that the Bill is clear about the circumstances in which, and for what purposes, information can be provided without consent. A consistent thread runs through the Bill. Other than those agencies with particular responsibilities in relation to national security, which have their own statutory framework as a justification for having access to such information, access for the investigation of criminal or related matters is restricted to the prevention and detection of serious crime, which is defined in clause 43.

I hope that that deals with all the matters that hon. Members have raised. I think that it does, with the exception of that raised by the hon. Member for Newark (Patrick Mercer), who asked me to speculate on the interrelation between these provisions and a piece of legislation that was described in the broadest of terms by my right hon. Friend the Home Secretary yesterday. I regret that until the detail of that legislation is drafted, I will not be able to do for the Committee what the hon. Gentleman has suggested and I cannot assist the Committee any further on that point.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Use for correcting inaccurate

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 177, in page 19, line 22, at end insert—

'(2A) In such a case, the Secretary of State shall notify the individual in writing that he has taken action under subsection (2).'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 194, in page 19, line 22, at end insert—

'(2A) The Secretary of State shall notify the individual concerned in writing and within 30 days.'.

No. 179, in clause 23, page 20, line 14, leave out 'and'.

No. 180, in page 20, line 17, at end insert

'and

(c) notifying the individual of the fact that the information has been provided.'.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Amendment No. 177 seeks to ensure that where the Secretary of State is correcting information, he will notify the individual in writing. I hope that we will get some additional clarification on that from the Minister and examples of where it might occur. For example, I understand that if somebody comes forward with some evidence about their registrable facts, perhaps because they have applied for a passport or something else, and some of the information held by Departments is incorrect, that information will be corrected. It would be helpful if the Secretary of State could authorise that information to be corrected on behalf of the individual.

It would also be helpful to understand the scope of the clause. Is it intended simply to relate to the information that the individual has provided to demonstrate the registrable facts, or will it be broader? If an error is picked up, can the Secretary of State go to a range of Departments that might be using the identity register and seek to correct their information? We have sought in this group of amendments—particularly in amendment No. 177—to ensure that the individual is told where that occurs.

Amendment No. 177 is important in the context of the data protection principles, which are clear: an individual has a right to have data about them corrected if it is inaccurate and the data subject, the person, has a set of rights in relation to the data that is held about them. We are concerned that the clause would allow the Secretary of State to amend an individual's personal data—potentially across a range of Departments—without them being told about it. That would be in breach of the principles of data protection.

The amendment seeks to ensure that the individual is told in writing that a correction has been made. Amendments Nos. 179 and 180 would ensure that the rules that will be established by regulation on how an individual's data is used without consent, to which we will come in clause 23, also ensure that an individual is told about that.

It is important in data protection and potential legal liability terms that when we come to clause 30 we discuss the provision of false information. An individual is liable to prosecution if they knowingly, recklessly, or in some way, with some criminal intent, present registrable facts incorrectly. There has to be a question as to whether the Secretary of State's correcting data about registrable facts will lead to criminal proceedings against an individual. An individual needs to be able to clarify whether they are seen as an innocent party who simply inadvertently provided inaccurate information, or whether they will be treated as potentially a criminal suspect under clause 30 and prosecuted for the provision of that inaccurate information. From the individual's point of view, it is important that there is transparency and clarity. If the Minister is unable to accept our amendments, it would be helpful if he would give a little more detail about how the measure will work in practice.

Des Browne (Labour, Kilmarnock and Loudoun)

I do not want to make a mountain out of molehill in relation to this. Clause 30(2) states that a person is guilty of an offence of providing false information only if the circumstances at the time of the provision of that information are that he

''(a) knows or believes the information to be false; or

(b) is reckless as to whether or not it is false.''

The answer lies in clause 30.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to the Minister for that explanation. However, there are difficulties with the test of knowing or believing that the information is false, and we will discuss that later.

Let us start with the facts. An individual presents some information to the authorities and that information is deemed to be incorrect. Someone then needs to determine whether the individual knew or believed it was incorrect when they presented it. There is a potential interaction with clause 21, which says that the Secretary of State must ascertain that the information is incorrect. The question that our amendment poses is, should the individual be told at that point, so that whether there was knowledge or belief can be clarified by the individual engaging in a discussion with the Secretary of State about that false information in an open and transparent process? Of course, if the Secretary of State comes to the view that the individual knew or believed the information to be false when they presented it, the Secretary of State might wish to pass that on to the Crown Prosecution Service.

However, our concern is that a considerable process of correction and examination of inaccurate data might take place without the person about whom that inaccurate data has been presented being told. It would be more consistent with data protection principles if they were told up front. That would in no way preclude the Secretary of State from launching a prosecution if it turned out that the clause 30 threshold had been reached, but in order to establish that, the individual would need to be in a dialogue about the inaccurate data at an early stage. Our amendments would ensure that that dialogue took place. That would be a better regime to have than one in which the Secretary of State was arbitrarily, or without the individual's knowledge, correcting data about them. That might create problems.

I hope that the Minister can at least accept the principle that, in ideal circumstances, an individual should be engaged in discussion about their inaccurate data. I hope that he can clarify further how things will work in practice when I or you, Mr. Conway, or anyone else, has presented a document and the Secretary of State feels that it is inaccurate and wishes to use the clause 21 powers to correct it. What information will be provided to the individual?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman has done the Committee a service by tabling his own amendment to this clause, but I want to speak to my amendment.

Amendment No. 194 would insert:

''The Secretary of State shall notify the individual concerned in writing and within 30 days.''

The Minister will take the view, which many people will understand, that there must be occasions when information is provided about an individual—to the security services, perhaps—and that individual is not informed about it; reasons of national security might be involved. However, this clause addresses a different matter. It deals with correcting inaccurate information about an individual, which is an entirely different scenario. It strikes me as exceedingly odd that the one person who is kept blissfully unaware of any such transaction, which is merely a correction in terms of accuracy, is the individual concerned. They are kept completely out of the loop.

My amendment would rectify that unfortunate omission. I firmly believe that the correction of something inaccurate on the register, is—I use the word perhaps not in its true meaning—an innocent exercise. There can be nothing sinister behind that or, if there is, the Minister has a duty to tell us. Therefore, plainly, the individual should be told.

I feel strongly about the amendment. Opposition Members speak, as so often in debates in this House, on behalf of the individual. That is what we strive to do, and the hon. Member for Sheffield, Hallam has a similar distinction. He too has tried to represent the interests of the individual against the interests of the state on many occasions.

The Minister has a great deal of explaining to do to justify not accepting our amendment. Looking at the history of amendments tabled during consideration of the Bill, my hon. Friends and I regret that many have not been accepted. This could genuinely be accepted by the Minister. He could simply say, ''Yes, all right, if we are correcting inaccurate information on the register, we can see no justification for not telling the individual in writing what we have done.'' After all, it might reassure the individual.

Des Browne (Labour, Kilmarnock and Loudoun)

It would be opportune if I gave slightly more information than I have hitherto been able to about my understanding of the Data Protection Act 1998 and its interaction with this Bill, and I will do so at the appropriate point in my remarks.

Amendment No. 177 would make it a requirement to notify an individual in writing if information has been provided about him to another person under clause 21. Amendment No. 194, which is similar in effect, would require the written notification to be given within 30 days. In principle, both of these amendments are much the same. Amendment Nos. 179 and 180 together would add a power to make regulations about notifying an individual if information has been provided without his consent under clauses 19 to 22.

First, I will take the two amendments on the correction of information. The clause was drafted so that where the identity checking process has identified inaccuracies or omissions concerning information provided, the Secretary of State may notify the person or organisation who provided that information of the details of those inaccuracies or omissions.

Dealing with one of the points of the hon. Member for Sheffield, Hallam, corrections can be made only to the person or organisation who provided the information and not across Government. The relationship of communication is between the organisation that provides the information and the register. It may be as simple as if a person gives a proper spelling of a name and, in verification, an organisation has another spelling. That can then be corrected and the organisation told which spelling of the name is appropriate—for example, ''Allan'', with two l's, not one. That is logical and not disputed. The concern is whether or not the person involved should be notified that that communication has taken place.

The Government's position is that any person concerned that information has been provided without their knowledge or consent, or, indeed, any information provided at all, has data subject access rights under the Data Protection Act. That is entirely appropriate. At this stage I will explain to the members of the Committee what those obligations under the Data Protection Act are. I will show what already pertains in plain language—the Act is not always the most immediately accessible piece of legislation.

Under the Data Protection Act, the obligation to notify applies ''so far as practicable''. Where the information has not been obtained from the data subject, the obligation does not apply where the provision of information would involve a disproportionate effort, or the recording of the information to be contained in the data by, or the disclosure of the data by, the data controller is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

Furthermore, the obligation to notify is subject to the general exemptions under part IV of the Act. I refer, for example, to the first data protection principle, to which the hon. Member for Sheffield, Hallam referred, including the right to notification, which does generally not apply where non-compliance is necessary for the purpose of safeguarding national security or for the prevention and detection of crime. The Government are content to rest with that obligation being on those who have responsibility for the register because the obligations to notify have already been enacted by Parliament in the legislation to comply with the European Union directive. The standards have been set for such organisations and it would not be appropriate therefore for a series of different standards to apply to data in respect of the register, when complying with the Data Protection Act could be the appropriate standard.

Humfrey Malins (Conservative, Woking)

Like the rest of us, the Minister lives in the real world. He and I could travel 100 miles before we found anyone who had a clue about what the Data Protection Act was about, far less about what duties or obligations apply to the Government. However, we could travel 100 miles and find 1 million people who would be concerned if they were not told by the Government when the correction of an inaccuracy was made to the register. Is there a sinister background to why I should not be told that? I do not believe that the Data Protection Act helps individuals.

Des Browne (Labour, Kilmarnock and Loudoun)

I am obliged to the hon. Gentleman, but I disagree with him. The Data Protection Act is important legislation. It provides significant protection for individuals. It is applied daily throughout the country to protect data about individuals and ensures that they are notified when important changes are made to those data. I am content that those obligations are accepted by those responsible for the register and are applied. If we draft another set of obligations, that will not make any difference to individuals. The appropriate obligations have been debated and considered by Parliament and legislated for, and should be applied to the database as much as they are to any other database.

Geoffrey Clifton-Brown (Conservative, Cotswold)

We have debated fairly draconian clauses under which, if an individual makes an inadequate entry on the register, he is subject to severe fines. We now have a position in which the state can get things wrong, but the individual will not even know about it.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, it is the opposite. The purpose of the provision is to allow the state to correct errors in other databases and places where information is held, when the fact of the error comes to the notice of those responsible for the register. If, for example, a mis-spelling of a name is discovered at the point of verification to be in use by the Department for Work and Pensions, it is common sense that those responsible for the register and the Secretary of State should be able to tell the Department that the correct spelling of the name is ''Alan''—[Interruption.]

The hon. Member for Cotswold asks why the individual cannot be told about that. I am not saying that the individual cannot be told about it, just that he should be told about it, subject to the usual data rules. We are making it crystal clear that the normal data rules will apply to the register. I do not want to write a separate set of rules on data when a comprehensive piece of legislation, the Data Protection Act, covers the circumstances in which people should be notified.

Patrick Mercer (Conservative, Newark)

If we are to make such matters crystal clear, should not a duty be laid on the Secretary of State under the Bill?

Des Browne (Labour, Kilmarnock and Loudoun)

The duties of the Secretary of State are set out in the Data Protection Act. I rest my argument there. It is up to members of the Committee whether they accept that it is the right framework in which the information should be communicated. It is the Government's argument that it should be.

I am not clear whether I have dealt with all the amendments. I think that I have, but if I have not, Committee members can intervene on me. I shall rest my argument at this point, but I encourage Committee members not to press the amendments.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Minister has helped to crystallise and focus the arguments. I am quite a fan of the 1998 Act, which is a good piece of legislation. However, concerns remain about what the Minister said.

As somebody whose name is spelled ''Allan'', I am the victim of constant misspelling. The propagation, based on one register, of a version of my name by the Secretary of State would be of concern to me. The Secretary of State might propagate an incorrect version, depending on whether it had been got right in the first place. Perhaps the person who typed in my identity card register entry would type ''Allen''. I might not bother to correct that, because I am so used to it that I might correct such things only from time to time or I might not get round to it. The idea that ''Allen'' would be propagated to all my entries that are correctly spelled ''Allan'' fills me with trepidation.

Computers are stupid; a search for ''Allan'' will not find ''Allen''. When I ring up certain agencies, I say that my name is spelled ''Allen'' because I know that they will find the record, and that if I say ''Allan'', they will not.

David Curry (Conservative, Skipton and Ripon)

I understand that the hon. Gentleman might be concerned about the difference between ''Allan'' and ''Allen''. However, if he casts his mind back a little while, he will be able to imagine the confusion that could arise between ''Curry'' and ''Currie''.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Absolutely.

Martin Salter (Labour, Reading West)

Has the right hon. Gentleman slept with John Major?

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. I was distracted by the sedentary intervention from the hon. Member for Reading, West (Mr. Salter).

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I have certainly never had any difficulty in spotting the difference between the right hon. Member for Skipton and Ripon (Mr. Curry) and the former Member whose surname was spelled ''Currie''. However, computer systems might have the problem that I referred to, and that is the key point.

The point about notification is important. The Minister said that data protection rules applied and then described a lot of cop-out clauses on how those rules apply. It would be preferable to ensure that the Secretary of State had an explicit duty.

Humfrey Malins (Conservative, Woking)

I should like to flag up an issue about the spelling of names. I omitted to draw this point to the Minister's attention. When people are convicted of or plead guilty to motoring offences in a magistrates court, it is required that a printout of their licence be obtained from Swansea. Anecdotally, I can say that the spelling of the name is critical to getting an accurate printout, and that in at least 50 per cent. of cases, Swansea's spelling does not match the spelling of the name. It appears to me that full names—the term ''Christian name'' is not necessarily attributable to everybody nowadays—become more complicated in this country as the years pass. There is a huge problem, and that has some relevance to what we are discussing.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman makes a good point, and if we move from names to addresses, we get into a whole other area. My local council uses a gazetteer of addresses in which my address does not appear. I have to have an inaccurate address for the purposes of my council tax. I cannot do anything about that; the council cannot record the accurate address because that does not exist within its system.

If one tried to propagate from the national ID register to Lambeth council, there would be all kinds of trouble because that address does not appear within its system. There are substantial grounds for making it a 100-per-cent.-always notification system in the Bill, rather than leaving the issue to the Secretary of State to say, ''It would be disproportionately costly'', or ''I know better''. I think it appropriate that we seek to have the amendment agreed to through a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I beg to move amendment No. 218, in clause 21, page 19, line 31, leave out 'something' and insert 'a specified statement'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 219, in clause 21, page 19, line 32, leave out 'something' and insert 'a specified statement'.

No. 220, in clause 21, page 19, line 35, leave out 'something' and insert 'a specified statement'.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I shall be brief, because we have an awful lot to get through this morning. These are very simple amendments. If hon. Members would be kind enough to look at clause 21(4), they will see that my amendments would replace ''something'' in paragraphs (a), (b) and (c) with ''a specified statement''. The purpose of the amendments is simply to probe the Minister on what is meant by ''something''.

Des Browne (Labour, Kilmarnock and Loudoun)

To understand what is meant by ''something'', one has to understand the purpose of the clause. I remind hon. Members that it provides a power to give information, without consent, to a person or organisation that has supplied information to help verify an entry that is inaccurate or incomplete. The clause has to be read in conjunction with clause 11, which allows provision of information for verification purposes.

I must resist the amendment because it is inconsistent with the wording that we used in clause 11, which we have agreed should stand part of the Bill. However, I accept that we agreed to that clause without the benefit of having any debate on it.

I am asked what ''something'' may cover, and I shall provide as much information as I think necessary to persuade hon. Members of what it means. It covers a wide range of information, but for good reason. The Bill does not set out the information that may be checked because of the security implications that that may have, and because what is checked may differ from person to person. The only information that could be checked is information that could be recorded in the register—that is, the information set out in schedule 1.

I am not sure what is meant by ''a specified statement'', but a statement is just one of the items that could be recorded. It is hardly an apt term to describe a photograph, fingerprints, a security code or other registrable facts. Those are exactly what is meant by ''something''. In any event, the term is subject to the provisions in the Bill that limit what can be registered, although an exhaustive list could not be provided without doing a disservice to the Bill. Consequently, I urge the hon. Gentleman to withdraw his amendment.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clause 22 - Power to authorise other uses of information

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 118, in clause 22, page 19, line 45, at end insert—

'(ca) any disclosure of information which results or would result in interference with an individual's private and family life is proportionate, and is for the purpose of—

(i) the protection of public safety or public health, or

(ii) the protection of the rights and freedoms of others;'.

The amendment is perhaps different in tone and type from a number of other amendments that have been debated so far. We are all aware that clause 22 provides general powers for wide-ranging disclosures of details from the register without the consent of the cardholder. The Government have so far given few examples of why they need such powers, other than to say that they are useful to have. The clause thus permits general disclosure without consent for unspecified purposes, where the only thing that we can be sure of is that the purposes are not national security or crime and taxation, which are the subject of other disclosure powers.

It is important to stress that the equivalent of the clause was criticised as unacceptable in the Home Affairs Committee report on the draft ID card Bill. I cannot lay my hand on that reference this morning, but I believe that it is right and is contained in that report. I would be grateful if the Minister could comment on that at some length to satisfy me.

The clause is an obvious target of criticism by the Joint Committee on Human Rights. Perhaps the Government will allow that Committee to report fully before the Bill has left the House of Commons, although I do not suppose that they will allow it to do so. In responding to the debate, the Minister has a golden opportunity to bring us up to date on the timing of the Joint Committee's report and its relevance to this matter.

My amendment links clause 22 with article 8 of schedule 1 of the Human Rights Act 1998, the first paragraph of which sets out a general duty of a public authority to respect an individual's private and family life and communications. The second paragraph outlines the exceptions from that obligation, so as to permit a public authority to interfere with private and family life, and therefore sets out the legitimate purposes that must underpin clause 22 disclosures in human rights terms. The second paragraph says:

''There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.''

It will not have escaped the attention of Government Members and my right hon. and hon. Friends that clause 22 makes no mention of necessity, hence amendment No. 118, which introduces a proportionality test.

The Committee will note that my amendment makes no mention of article 8 requirements in relation to the words

''necessary in a democratic society in the interests of national security''

and

''for the prevention of disorder or crime''.

I have no need to deal with those purposes. Crime, national security and taxation are the subject of clauses 19 to 21. We have also dropped the public ''morals'' part, too.

If one removes those elements of article 8, what is left pertaining to clauses 19 to 21 are the words,

''no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of public safety . . . the protection of health . . . or for the protection of the rights and freedoms of others.''

So the database could be used in public health emergencies when, as is sadly possible, thousands of corpses have to be identified and buried quickly. I think that the amendment is consistent with article 8, because it requires the disclosure without consent to be necessary in a democratic society, and requires the purpose to fall within an article 8 exception.

Des Browne (Labour, Kilmarnock and Loudoun)

May I say that the timing of the Joint Committee on Human Rights report is out of my hands, which is entirely appropriate? I am aware that it is conducting an inquiry, although I am not aware of any particular communication from it that would assist hon. Members as to when it is likely to report. The Bill was published in November and what the Committee chooses to prioritise in its significant amount of work is a matter for it. I want to put it on record that there would be no question of the Government's allowing or disallowing it to do anything. This is entirely a matter for that Committee and the Government would in no way seek to interfere with the timing of any of its work.

I can deal with the amendment relatively quickly. We expect most checks on the register to be done with the consent of an individual. There are, of course, powers in the Bill that authorise the provision of information without consent in certain specified circumstances—for example, in relation to the police or security services. We have gone into the detail of those. However, in the light of the great variety of situations in which the scheme will operate, it is necessary to leave a certain discretion to provide relevant information from the register to relevant authorities.

Clause 22 is necessary to ensure flexibility and to prevent the need for further primary legislation. The hon. Gentleman figured out one set of circumstances where it might be necessary to provide a relevant authority with information. I am not entirely clear from the way he introduced the example whether it would precisely be covered by the Bill as drafted. That set of circumstances might already be covered.

However, there are circumstances where the Bill does not already cover the provision of information and where Parliament might decide it would be appropriate to give such information. Such examples might include giving information to local government for fraud investigation, to the Registrar General for statistical purposes or to the emergency services in the event of a major incident, if Parliament decides that that is necessary. None of those are covered thus far in the Bill by the definition of those to whom information may be given without consent. I am suggesting that there is the flexibility for provisions to be written in response to individual sets of circumstances if Parliament decides that that is appropriate and necessary.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I am getting more and more concerned. One might have been concerned about the provisions in clauses 20 and 21, but clause 22 is even more draconian. This is a case where the stricter provisions under clauses 20 and 21 do not apply and the purposes can be extended by order of the Secretary of State. The Minister has just given the example of ''for statistical purposes''. We are talking about matters without the individual's consent. Why on earth would anybody want to make an entry in the register without the individual's consent for statistical purposes? His example makes me even more worried about the clause.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, he might well have misunderstood me. I did not say that people would be able to make entries in the register for statistical purposes. As I understand it, the Registrar General will not be a Department in terms of clause 19(5), but we can understand that sometime in the future Parliament may wish persons who are not authorities covered by the Bill to have access to that information. If Parliament chooses not to do that, they will not have access.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

On the principle of how we deal with legislation in the House, if the Minister is saying that he has a list of bodies that he anticipates will want access in the future, why has he not included them in the primary legislation in a schedule that lists them all? Why has he left it to this catch-all clause if he can imagine today that they are going to need access at some point?

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, I am not anticipating that bodies will need access. I was asked what bodies the provision could cover. The hon. Member for Woking set out circumstances in which it would clearly be in the public interest for Parliament to consider whether access to the register by an authority that was not already a public authority under the Bill should have access to identify, for example, a significant number of bodies of people who had been killed in a major disaster. That would of course be a matter for Parliament.

Standing here before the Committee, I cannot envisage every set of circumstances in which, when the register is in place, Parliament may decide that it would be in the public interest for access to be granted.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I must press the Minister on this point, because if he does not satisfy me on it I suspect that he will not satisfy a large number of bodies outside the Committee. He has given the example of collecting statistics. That may be a legitimate reason for seeking to look at an entry on the register, but it is not a good reason for doing so without the individual's consent. We have to restrict the occasions when an entry on the register is going to be inspected without an individual's consent to purposes of national security and serious crime, rather than the much more trivial purpose of statistics. The fact that the Minister gave me that example makes me more, not less, concerned.

Des Browne (Labour, Kilmarnock and Loudoun)

I gave the hon. Gentleman that example because we are in a situation where, for historical reasons, the Registrar General for Northern Ireland will be a public authority—

Geoffrey Clifton-Brown (Conservative, Cotswold)

It does not matter whether they are a public authority.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, we have an inconsistency here. Because of historical reasons in the statutory basis for those bodies, the Registrar General for Northern Ireland will be a public authority under the Bill, but the Registrar General for England and Wales and for Scotland will not. I am not suggesting that I have it in mind that the provision will be used for statistical purposes, but I gave that example to show the distinction between those who may be public authorities and those who may not.

Mr. Curry rose—

Des Browne (Labour, Kilmarnock and Loudoun)

If the right hon. Gentleman will remain in his seat for a moment, I want to proceed because there are other restrictions. This cannot be done without Parliament's permission. Clause 22 is necessary to ensure flexibility and, in certain circumstances such as those figured by the hon. Member for Woking, to prevent the need for primary legislation where it would be appropriate to provide such information. I give similar examples to those given by the hon. Gentleman. For example, the local authority would not be a public authority in the Bill's terms for fraud investigation. The provision is subject to the affirmative order-making procedure so that an organisation cannot be added without parliamentary approval, and the same authorisation and oversight arrangements will also apply.

Mr. Curry rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I must discuss the amendment, which is important. I will come back to the right hon. Gentleman in a moment.

Amendment No. 118 would include a requirement for any provision of information to be proportionate in its interference with an individual's private and family life and entirely appropriate for the purpose and protection of public safety or public health or the protection of the rights and freedom of others.

Humfrey Malins (Conservative, Woking)

I do not accept it.

Des Browne (Labour, Kilmarnock and Loudoun)

Although I understand the hon. Gentleman's concern, I reassure him that the amendment is unnecessary because of the application of the Human Rights Act to the Bill. I understand that Opposition Members are not all fans of the Human Rights Act, although it appears that they are fans of some of its provisions and can understand why it is relevant for the protection of rights. Using the amendment, they want to fillet the Human Rights Act and apply some of it to the Bill and disapply other parts. However, it is a matter of fact that the whole Human Rights Act will apply.

Under article 8 of the European convention on human rights, a public authority must not interfere with a person's right to a private or family life except in limited circumstances. Those include where it is accordance with the law in the interests of national security, public safety and economic well-being of the country; for the prevention of disorder and crime; for the protection of health and morals; or for the protection of the rights and freedoms of others. The courts will also consider whether the action taken is proportionate to the aim to be achieved. That responds to the point made by the hon. Member for Cotswold about the willy-nilly use of this information.

The exercise of the powers under clause 22, in addition to requiring parliamentary approval, is subject to the provisions of section 6 of the Human Rights Act, whereby:

''It is unlawful for a public authority to act in a way which is incompatible with a Convention right.''

That effectively means that any discretionary power must be exercised in a manner fully compatible with article 8.

I should also mention that the circumstances whereby information may be provided under the amendment are more limited than those in the European convention on human rights. That means the scheme could not maximise its benefits. The amendment excludes being able to provide information without consent to additional organisations, even in the interests of national security, economic well-being or the prevention or detection of crime. That means that we might not be able to provide information to local authorities for fraud prevention purposes.

David Curry (Conservative, Skipton and Ripon)

Every 10 years the Government carry out a census. Can we have an assurance that that census information will not be cross-referenced with information kept about people's identity in the database? Will there be no temptation to cross-reference those two pieces of information? They are crucial. For example, the distribution of local government funding depends heavily on the outcome of the census.

Des Browne (Labour, Kilmarnock and Loudoun)

I clearly understand that, but I am not clear from how the right hon. Gentleman asks the question whether he is encouraging or discouraging cross-referencing for accuracy.

David Curry (Conservative, Skipton and Ripon)

My purpose involves whether there will be a cross-reference. The data bank will contain a colossal amount of information about individuals and the people resident in the United Kingdom. The census seeks to discover a great deal of similar information and is the basis for determining significant amounts of funding and, therefore, the formulation of policy. Will there be a relationship between the permanent database that is constantly changing—that to do with identity cards—and that once-every-10-years photograph of the population, which is taken in the census?

Des Browne (Labour, Kilmarnock and Loudoun)

I think the answer to the right hon. Gentleman is that there ought to be. If they are both accurate in their assessment, there ought to be a correlation between them.

David Curry (Conservative, Skipton and Ripon)

So there will be a cross-reference.

Des Browne (Labour, Kilmarnock and Loudoun)

I am not suggesting that there will be a cross-reference. The historical information in the census is published. That is clearly information that will be used for the verification of information—

Mr. Curry rose—

Des Browne (Labour, Kilmarnock and Loudoun)

If the right hon. Gentleman will take his seat for a moment, that is exactly what he is asking me. Census information is public information. It would not be appropriate not to use that for the verification of information that goes into the register, surely.

David Curry (Conservative, Skipton and Ripon)

Let me explain. One assumes that the most reliable volume of information held about the people who live in this country will be the information held in relation to identity cards. That will be constantly updated.

The census—once every 10 years—takes information about people living in this country, but in many respects is often deficient, because people may not fill in the forms. There are whole swaths of the population who tend to be missed by the census. That plays through into such things as local government funding.

This is what I want to know, and it is a point of information, because we have talked about statistics. What are the Government's purposes? Might they try to verify the information in the population census using the identity card information already held in their databases and seek to reconcile the two? Perhaps the census will become unnecessary.

Des Browne (Labour, Kilmarnock and Loudoun)

The census information, I understand, is aggregate information; otherwise, the detailed information is protected for 100 years. This legislation does not seek to interfere with that. It is not the Government's intention to interfere with any of those provisions in relation to the census.

David Curry (Conservative, Skipton and Ripon)

It is not a matter of interfering. The ideal database is a cross-reference to the census.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. We cannot have lengthy exchanges involving speaking from a sedentary position. I am happy to call Members when they have a point to make. It may help if I say that, on this wide-ranging clause, it is in order to have a stand part debate, if members of the Committee so wish.

Des Browne (Labour, Kilmarnock and Loudoun)

Let me have one more attempt at giving the right hon. Gentleman a simple answer to his question, which, I must confess, I do not fully understand, although that is entirely my responsibility.

The census statistical information is aggregate information and, as we know, when it is published it can be significantly out of date. The right hon. Gentleman has already expressed his worries about local information in relation to his constituency and others. If he is asking whether the clause will enable population data to be updated by the Registrar General if more recent information was available, it will empower that. However, Parliament would have to decide whether that was appropriate use of the information. He is concerned about the accuracy of the information and the basis on which it is used thereafter for other public policy decisions. Clause 22 will enable population data to be updated if more recent information is provided to the Registrar General, if such regulations were drawn up.

To return to the amendment, it is unnecessary because the issues are already covered by the Human Rights Act. In any event, we should note that the national identity scheme commissioner will oversee the provision of any information held on the register, including its proportionality—the issue that exercises right hon. Gentlemen under the clause. I invite the hon. Member for Woking to withdraw the amendment.

Humfrey Malins (Conservative, Woking)

I am bound to say that many Opposition Members are disappointed by the Minister's reply, although he has tried hard to help us. He seemed to justify the clause—I shall be corrected if I am wrong—by saying that he thinks it necessary because it will create flexibility. Well, that is not a precise observation and I hope that, when he speaks on clause stand part or to the next amendment, he can give us concrete examples of why the clause is necessary. I know that he has given one or two, but Opposition Members want examples of real-life cases where the clause will be necessary as such matters are not covered by other clauses.

I have a feeling, especially in relation to human rights, that the matter raised by the amendment—perhaps narrowly—is likely to return to us during future proceedings on the Bill, so I do not choose to establish the opinion of the Committee. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 138, in clause 22, page 20, line 6, at end add—

'(3) No draft order containing a provision that the Secretary of State is authorised to make by this section is to be laid before Parliament unless—

(a) the Secretary of State has prepared and published a report containing a proposal for the making of such provision;

(b) the report sets out the Secretary of State's reasons for making the proposal;

(c) the report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications; and

(d) the draft order gives effect to the proposal so far as approved by both Houses.'.

Again, the amendment relates to parliamentary approval. By way of background, we know that power to disclose without consent is extended theoretically without limit under clause 22. Regardless of the fact that approval is required for regulation, many of us remain extremely worried that the Home Secretary has effectively written himself a blank cheque. It is difficult to imagine a situation under the clause in which disclosure of information on the register could be justified.

Clauses 19 to 21 are already extremely broad in scope and many of us wonder what extra powers of disclosure are envisaged. We talked about such powers a little earlier. With that background, we wonder how likely it is that disclosure powers that go beyond those already in the Bill will not breach data protection requirements or fall foul of proportionality—a matter referred to earlier—and legitimate purpose requirements under article 8, which relates to the right to privacy. That right can be breached only for a specific purpose and any breach must not be excessive for the purpose it serves.

My amendment would allow greater parliamentary scrutiny in an age when full and sufficient parliamentary scrutiny is, sadly, not regularly provided. The amendment mirrors the provision in clause 7(2) requiring a report to be laid before Parliament before any order is made under clause 6 to extend the number of groups to be required to register. Crucially, the report can be amended. I tabled the amendment on the basis that the Government have to be fully accountable to Parliament; it would help towards that end.

Derek Conway (Conservative, Old Bexley and Sidcup)

Before I call the next speaker, may I make it clear that there will be a clause stand part debate when we have disposed of this group of amendments? I therefore intend that the Committee should stick very firmly to the terms of the amendment, not the terms of the clause.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I rise to give my support, and that of my hon. Friends, for the amendment. It would introduce the super-affirmative procedure that we have discussed on many occasions. That is important in this instance because, under the clause, the Government are taking powers to add a potentially huge range of bodies to the Bill. We will discuss those powers more broadly later. It is important to understand the relationship between primary and secondary legislation.

Under clauses 19 to 21, we discussed in some detail a whole set of restrictions on how a huge range of Government bodies can access the data without consent. Under clause 22, we are saying that, by an ordinary affirmative procedure, other bodies can be added. In a sense, it will make a mockery of the previous clauses, which we have debated in such detail, if bodies can simply be added under this procedure.

If one were suspicious, one would say that there is a deviousness here and that there are secret plans to introduce new bodies that people might have concerns about, but which would not be fully expressed under the ordinary affirmative procedure. They might be better expressed under the super-affirmative procedure that we have put forward. If that super-affirmative procedure were used, there would at least be a report saying why those bodies needed to be added.

One assumes either that level of deviousness or a lack of confidence on the part of the drafters of the Bill—they are not sufficiently confident that they can create comprehensive legislation, so they had to put the provision in. They have gone for not the easiest possible route—that would be the negative resolution procedure—but the next easiest, which is the straightforward affirmative resolution procedure.

Given the scope of what we are going to discuss in the context of the clause, I do not think that a 90-minute debate in a statutory instruments Committee will be sufficient to deal with some bodies that we are talking about; we had hints of that in a previous debate. I hope that the Minister will agree to the amendment and accept that, if he is to add substantive new bodies to the list of those that can access data without consent, that should be done with the much greater parliamentary scrutiny that would be afforded if the Bill were amended as proposed.

David Curry (Conservative, Skipton and Ripon)

First, may I make a familiar moan? The explanatory notes on the clause are utterly useless in explaining what it is about. They merely reproduce the language of the clause. Explanatory notes are pointless unless they are expressed in simple English and do not merely reproduce the language of the Bill. In fact, they are practically useless for all legislation. Can we not have them in English? Instead of referring to the conditions in various subsections, can the notes not have an integrity in their own right, so that we know what the hell we are talking about? That would be better than having this obscure Sanskrit, which purports to be explanation. That is a permanent complaint; perhaps we can do something about it.

Secondly, I would like the Minister to set out what will be in one of the orders that are to come before Parliament so as to give me an example of what we are talking about. He must have envisaged the circumstances that will arise, but I am having some difficulty in envisaging what sort of order we will get. Will an order say that Joe Bloggs of 19 Maple way in goodness knows where can be incarcerated, in order to give him plenty of notice to get away, or will it say that body A is to be added?

Will the Minister give us a nice, typical sample illustration of the order that he might introduce, so that we can conceptualise—to use that wonderful American expression—precisely what we might find ourselves doing in this House?

Des Browne (Labour, Kilmarnock and Loudoun)

I take on board the right hon. Gentleman's observations on the explanatory notes, but I should say that there has been considerable consultation on this legislation and there is any amount of other information around, although that does not exonerate those who drafted the notes.

David Curry (Conservative, Skipton and Ripon)

Get a journalist to do it, not a lawyer.

Des Browne (Labour, Kilmarnock and Loudoun)

The right hon. Gentleman makes a plea for members of his own profession to be engaged. I have to be careful about what I say about journalists, but I am not sure that what they write always accurately communicates what has happened. I sympathise with him on the need for explanations to be written in plain English.

I have endeavoured to envisage the circumstances in which it will be appropriate to extend the uses of the information. The most appropriate circumstance that I can pray in aid is one that was mentioned previously, which is the emergency services responding to an emergency and seeking access to the information to establish the identity of people who had been killed or seriously injured. It would be inappropriate for primary—or some equivalent to primary—legislation to have to go through the House in such circumstances before such a response could be made.

I also recognise that in certain circumstances Parliament might take the view that it would be beneficial and in the public interest for some authorities—local authorities for benefit or council tax purposes, for example—to have access to that information. That would be entirely consistent with, and proportionate to, people's rights and liberties. Parliament might agree that that would be an appropriate use for the information.

The right hon. Member for Skipton and Ripon asked me for an exhaustive list of such possible circumstances. I cannot give one, as I do not think that one can be written. Because of that, I suggest that it would be impossible to anticipate and list in the Bill all those circumstances.

I resist the amendment for those reasons. It might be necessary in some circumstances, such as emergencies, or for very good public interest purposes to extend access to the information to bodies not already covered by the legislation. The power is already subject to the affirmative order-making procedure, so an organisation cannot be added without parliamentary approval. Broadly the same authorisation and oversight arrangements will apply to those regulations as apply to others. This is an appropriate procedure.

David Curry (Conservative, Skipton and Ripon)

In the emergency circumstance the Minister outlined in which a body might have to be added, presumably it will be added only for as long as it is necessary to have access to that information for the purposes of dealing with that emergency? Am I right that it will not become a permanent addition to the list?

Des Browne (Labour, Kilmarnock and Loudoun)

Of course, the right hon. Gentleman is correct that there can be restricted access for a restricted purpose and a restricted time. That is why I use the word ''flexibility''. I do not understand what is wrong with that word; it is appropriate that we should have that flexibility. Once this database is available, providing that the use is subject to appropriate oversight by Parliament and continues to be subject to appropriate oversight by the national identity scheme commissioner, it will be proper for rules to be written to have access, whether for a limited purpose or a limited time.

I understand why hon. Members express reservations about this power and the use of it. I undertake to go away and think about how to come back with further amendments to the provision. If necessary, I shall repeat that undertaking when we have a stand part debate. Such an amendment might, for example, involve consultation with people whom the provisions may affect. That device has been used in other parts of the Bill and it would help to reassure Committee members that the provision will not be used willy-nilly.

Humfrey Malins (Conservative, Woking)

We are on familiar territory. The Minister's last words were that he would consider whether he could move towards helping us on this matter, and he was not unhelpful. On that basis, and bearing in mind that there will be a stand part debate, I shall say no more on the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to you, Mr. Conway, for permitting a stand part debate. It is important that we put on record our fears about the potential abuse of the clause. I do not think that anybody would disagree that the emergency services might need urgent access in the circumstances that the Minister set out. However, part of what we are doing is to try to ensure that there are not routes for people to use the provisions in ways that would be publicly unacceptable and dangerous from a civil liberties or human rights point of view.

We regularly see how the courts test legislation and try to establish the limits of the powers that Parliament intended to impose on a Secretary of State. In this case, the powers appear to be limitless. The hon. Member for Woking referred to the Home Affairs Committee report, which in paragraph 272 states:

''It is not acceptable to have as broad a Clause as 20(5)''—

the wording in the original draft Bill—

''simply because the Government is unclear about its objectives.''

The same criticism applies in this area. There are a range of scenarios, but a lack of clarity. The fear is that bodies that could have a serious impact on the individual could be added through a fairly weak legislative procedure.

The Minister has said that he undertakes to think about the matter, and that is helpful. I ask him to think specifically about the earlier debates on the information in relation to paragraph 9 of schedule 1. During debate on the earlier clauses, we made a clear distinction that a threshold should be made before the audit data, which is accepted to be more personally intrusive, is accessed. One of the concerns about clause 22 is that there is no apparent distinction, as there is in paragraph 9, for a threshold that should be set at a higher level for potentially personal data.

The Minister described some bodies that could be added that would be beneficial. However, we have to consider whether foreign law enforcement agencies, for example, could be added under the procedures. Recently, we have had many debates in the House about bodies that have grown, such as Europol, and about concerns about the intrusion that they could make on the individual citizen without being fully under the control of the UK authorities.

There are questions about US passport control or US law enforcement agencies, which might say, ''The biometric passports are okay, but we really want to check the national identity register.'' Could such agencies be added under the procedure? Clause 22 does not seem restrictive in any way about which could be added. Am I right in saying that any external or foreign law enforcement agency could be added as a body that could access the data through clause 22?

I understand why the Government want that kind of flexibility. We have a perennial debate about legislation that puts in place a primary legislative framework, with all the detail coming in the secondary legislation. However, it is always important that we do not leave loopholes through which a Government—perhaps with the best possible motives, perhaps in the public interest—could push through legislation without appropriate scrutiny.

A 90-minute debate in a statutory instrument Committee to decide whether a foreign law enforcement agency should have access to our national identity database would be entirely unacceptable. Furthermore, at the back of our minds we retain a concern that a less beneficial, malicious or malign, Government could use the provisions of any piece of legislation to put through something that was entirely inappropriate. It looks as if clause 22 is just such a clause; it could, through a very weak parliamentary procedure, allow Governments to add bodies that would be publicly unacceptable.

We take the Minister's undertaking that he will consider the issue again in the spirit in which it was intended. However, I hope that he will give further assurances and refer specifically to whether foreign law enforcement or border control agencies could be added through the powers under clause 22.

Des Browne (Labour, Kilmarnock and Loudoun)

I shall be brief, because I have rehearsed in earlier contributions many of the arguments that would have been relevant on clause stand part.

I have given an undertaking to the Committee to consider the possibility of adding a duty to consult persons who are likely to be affected by the order. I will also consider whether it is possible to insert a reference to provide that information falling under paragraph 9 of schedule 1 could be supplied for purposes connected with the prevention or detection of serious crime, which is a qualification that applies otherwise.

The breadth and width of the clause in relation to bodies outwith the United Kingdom, which the hon. Gentleman identifies is, in my reading of the clause, entirely possible.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Rules for using information

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 215, in page 20, line 23, leave out from 'person' to end of line 25.

We move on to an important clause dealing with rules for using information without the individual's consent. I pause simply to say that so much under the Bill seems to be done without the individual's consent that it comes as no surprise to any of us to see another clause with that heading.

The clause empowers the Secretary of State to make some regulations that make provision on imposing requirements. This is a probing amendment that seeks to omit subsection (3)(c), because is not clear what that paragraph means. It says:

''Those regulations may include . . . provision imposing other requirements as to the manner in which such applications must be made'',

which suggests that the Minister will have powers to make regulations that may include ''provision imposing other requirements'' further down the line. We do not know what are those

''other requirements as to the manner in which such applications must be made.''

Perhaps the Minister could explain what is meant by paragraph (c).

Des Browne (Labour, Kilmarnock and Loudoun)

I hope that I can deal with that relatively quickly. From the hon. Gentleman's contribution it is clear that he fully understands the clause.

To understand exactly what subsection (3)(c) means, one has to read it as a whole. It states:

''provision imposing other requirements as to the manner in which such applications must be made.''

For example, we might like to include in regulations made under paragraph (c) the information that would need to be recorded by an organisation requesting information to ensure that adequate records are kept for audit purposes, or we may want to require the organisation requesting the information to apply in a particular manner, for example, in a specific form in writing, or electronically.

It is right to work through the process in detail in respect of those affected by the clauses, rather than try to anticipate all the circumstances here in Committee. The Bill sets out in principle that organisations could have information provided without consent for the purposes that are specified in clauses 19 and 21. It would be artificial to set out in the Bill exactly how that should work, but it would be appropriate that provision should be made to say whether such requests should be made in writing or electronically. That is why the provision is included.

Humfrey Malins (Conservative, Woking)

The Minister has been helpful in his response. There are concerns about the clause that might be raised in the clause stand part debate. Who am I to say? However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Geoffrey Clifton-Brown (Conservative, Cotswold)

On a point of order, Mr. Conway.

Derek Conway (Conservative, Old Bexley and Sidcup)

I am sorry, but I cannot take a point of order at this point in proceedings.

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Standing Order 83D and the Order of the Committee [18 January], (as amended, [25 and 27 January],) to put forthwith the Question necessary to dispose of the business to be concluded at that time.

Question put, That clauses 23 to 25 stand part of the Bill:—

The Committee divided: Ayes 8, Noes 6.

Standing Committee B

Identity Cards Bill

Humfrey Malins (Conservative, Woking)

On a point of order, Ms Anderson. I want to draw attention to the appalling situation in which we find ourselves. This morning we were unable to discuss critical clauses in relation to the commissioner. I wonder whether there is anything that you can do from the Chair.

The Leader of the House accused us on the Floor of the House of a filibuster. Given that when the knives were introduced on this Bill some time ago there was no question of a filibuster, that was most unkind, unwise and wrong of him. The hon. Member for Reading, West (Mr. Salter) accused us of one and was promptly put right by all of us. The Chairman had made no reference to filibustering. It is an appalling state of affairs when we simply cannot debate vital clauses. Is there anything that you can do about this, Ms Anderson?

Geoffrey Clifton-Brown (Conservative, Cotswold)

Further to that point of order, Ms Anderson. My hon. Friend makes a good point. Not only have two important clauses not been debated this morning, but we have almost half the Bill to debate in one sitting this afternoon. There will be more than one Division in the House, which will take out time. What is more, the Leader of the House told us on the Floor just now that the Third Reading of the Bill is to be on a Thursday, when we will get only three and a half hours at most to consider it. The Bill has in no way been adequately scrutinised by Parliament. Can you do anything to make representations to alleviate this situation, Ms Anderson?

Martin Salter (Labour, Reading West)

Further to that point of order, Ms Anderson. While I was happy to withdraw the term ''filibuster'' under your excellent guidance, I left on the record the fact that the Conservative party had been time-wasting. The fact that the Chairman called Conservative Members to order no fewer than nine times in the course of one morning's sitting was evidence of that.

Janet Anderson (Labour, Rossendale and Darwen)

Hon. Members will appreciate that this is not a matter for the Chairman and that it lies in their hands to keep their contributions as brief and to the point as possible, to ensure that we can get through the business in hand.

Clause 26 - Jurisdiction of Intelligence Services

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Clause 26 expands the role of the commissioner who was set up in the Regulation of Investigatory Powers Act 2000 to oversee and deal with problems that individual citizens have when they believe that the data collected under that Act has been misused. We seek to ensure in the clause that any complaints about the intelligence or secret services can be dealt with by the tribunal. In clause 24, which we did not debate, we explicitly excluded those services from consideration by the commissioner that was set up in this Bill. It would be helpful to understand a little more about how this measure would work.

An individual citizen might believe that information that has come into the public domain must have come from law enforcement agencies and from their entry on the register or that they are being harassed by law enforcement agencies because of something in the register. Those are the kinds of circumstances in which the citizen might think that there is a problem.

The citizen will not know whether he is dealing with the law enforcement agencies that will be covered by the commissioner that is set up under this Bill—the national identity scheme commissioner—or with the secret service intelligence agencies that will be responsible to the intelligence services commissioner under clause 26. It is important that we get clarity about how the provisions will work in practice, so that the individual understands the situation when he comes forward with a complaint. Perhaps he will go to the national identity scheme commissioner and then be told, ''Oh no, this must go to the intelligence services commissioner.'' I am not sure how the provisions will work in practice.

Perhaps the other area of inconsistency—of interest—that needs to be examined is the tribunal system for complaints. We need to understand how it will operate from the citizen's perspective if he has a complaint. As I understand it, clause 26 says that the complaint will be dealt with through the normal tribunal process that has been established in respect of the regulation of investigatory powers. That is concerned with bugging and the collection of personal data that an individual might put across communications networks.

Again, we need to understand to what extent there will be a difference in treatment and the way in which their complaint will be resolved if the leakage of their national identity register data about which they complained happened at the hands of the intelligence and security services, not the police. If the intelligence and security services had created the alleged leak, a tribunal would deal with the discrepancy under clause 26. However, if it were alleged that the police had created the leak, there would be an entirely different procedure. Given the potential for citizens to become confused, I want to know how the two regimes will work. Will they operate in step or differ significantly from each other?

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Member for Sheffield, Hallam (Mr. Allan) is right in his understanding of the clause. The nature of the work of the intelligence service is fundamentally different from that in other Departments or the police and it requires special handling. The infrastructure for that special handling exists already with the intelligence service commissioner and it is entirely appropriate that individuals should have access to the infrastructure if they are of the state of mind to which the hon. Gentleman referred.

Alternatively, if individuals have a complaint, but are unsure where to place it, a complaint made to either commissioner will be passed to the other if it seems appropriate that the other commissioner should be the rightful recipient. It is understood that it might not be possible for the individual to know where to lodge the complaint. The usual oversight provisions will allow the intelligence service commissioner to be proactive in his investigations and supervision as set out under section 65 of the Regulation of Investigatory Powers Act 2000, which deals with the powers of the investigatory powers tribunal. The intelligence service commissioner reports annually to the Prime Minister and that report is set out similarly to the report for the commissioner under the Bill and presented to Parliament by the Prime Minister.

I am not so sure about the second part of the hon. Gentleman's question. It is just so obscure. The provisions under the 2000 Act envisage communication from the intelligence services commissioner to a complainant or an individual and that communication should appropriately make the individual aware of the processes for further appeal or review by the tribunal. There will be no communication difficulties with individuals who are engaged in such a process and I do not understand the concern about the way in which that provision will operate.

Question put and agreed to.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Possession of false identity documents etc.

Humfrey Malins (Conservative, Woking)

Amendment No. 195 would insert in clause 27, page 23, line 17, at end the words

'unless he has reasonable cause to be in possession of that document'.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss amendment No. 222, in clause 27, page 23, line 17, at end insert

'unless he has that person's permission and has good reason to have that document in his possession.'.

Humfrey Malins (Conservative, Woking)

My amendment was poorly drafted by me when I had not taken on board requisite intention under the Bill. If the Minister agrees with me that the amendment is entirely unnecessary, perhaps he will nod.

Mr. Browne indicated assent.

Humfrey Malins (Conservative, Woking)

I conclude by apologising to the Committee for having wasted 30 seconds. I shall not move the amendment.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 233, in clause 27, page 24, line 2, leave out 'ten' and insert 'twelve'.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 234, in clause 27, page 24, line 6, leave out 'two' and insert 'four'.

No. 196, in clause 27, page 24, line 8, leave out 'twelve' and insert 'six'.

Humfrey Malins (Conservative, Woking)

These probing amendments deal with the sentencing provisions. This clause creates some very serious offences. Amendment No. 233 would increase the potential term of imprisonment from 10 to 12 years for an offence under subsections (1) or (3). I will make no point on that, save that I plucked a figure out of the air to illustrate that these are grave matters. I would be interested to know the Minister's reasons for reaching a figure of 10 years for those offences.

We will debate what is covered by the term ''identity document'' when we come to clause 28. This point might be better made in a clause stand part debate, but those who deal in the apparatus designed to invent such a card are guilty of an extremely serious offence. It is not a bad parallel to consider on the one hand the drug dealer, and on the other hand the person behind the drug dealer with the necessary paraphernalia—that is the legal word—to enable the person further down the line to commit the offence.

I would like the Minister to talk a little about sentencing policy. How does he rate the seriousness of these offences, compared with many other offences that come before the courts? However, I assure him that it is the view of Conservative Committee members that certainly some of the offences under clause 27 are very serious and that they ought to be visited with very strong penalties.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Member for Woking (Mr. Malins) has spoken only on amendment No. 233, which is fair, but he is seeking to make a point on proportionality, and I will address that.

Mr. Malins indicated assent.

Des Browne (Labour, Kilmarnock and Loudoun)

However, I want to put it on the record that I resist all three amendments. I will give the hon. Gentleman an answer that is short and to the point, and that shows to him the point of proportionality from which others are drawing.

Ten years is a significant penalty; I think that the hon. Gentleman, who has had cause in another aspect of his life to impose penalties on people, would accept that. Any change to the penalty would put the offence out of step with similar offences in the Forgery and Counterfeiting Act 1981; that is the answer that he seeks. Section 5 of that Act makes it an offence for a person to have in his possession an instrument that he knows or believes to be false with the intention of inducing someone to accept it as genuine and, by reason of so accepting, to do or not do some act to his or another person's prejudice, and the maximum penalty for that is 10 years' imprisonment. If the hon. Gentleman were to indicate to me by his body language that that sets the matter in the appropriate context, I would rest my case.

Humfrey Malins (Conservative, Woking)

That has been a helpful response. The Minister has put the matter in context. That was all I wanted, and I thank him for doing that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 - Identity documents for the purposes of s. 27

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 197, in clause 28, page 24, line 29, leave out ''or purports to be''.

I am certain that one or two of my hon. Friends have contributions to make on this amendment, and I look forward to hearing them. Suffice it to say that this is a probing amendment asking the Government a little more about the phrase ''or purports to be''. Something either is, or is not.

Des Browne (Labour, Kilmarnock and Loudoun)

I am sorry that the hon. Gentleman has been disappointed by the failure of his hon. Friends to come to his aid. In the spirit of his approach to the amendment, I think that I can respond briefly.

The term ''purports to be'' is a standard form of words already used in forgery and counterfeiting legislation, and the Government do not believe that it should be removed from the clause. Without it, documents that were forgeries and that were being used in the way that clause 27 criminalises would not attract criminal penalties.

Humfrey Malins (Conservative, Woking)

I find that helpful, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 232, in clause 28, page 24, line 41, leave out from 'licence' to end of line 43.

I have something constructive to say on this amendment. By way of background, I should say that the clause lists and defines the identity documents. It relates back to clause 27, which deals with being in possession of false documents with an intention to commit an offence. If someone is in possession of a document that is not properly theirs, and has the intention of using it to identify themselves, that is an offence.

I am slightly concerned about driving licences issued outside the country. The issue comes down to culpability, at the end of the day. Many people from various places who are lawfully present in this country drive cars. They can do so for one year—that is the maximum time for which one can drive on a licence from another country. After that, one is obliged to take an English test, apply for a provisional licence and so on.

The police regularly stop a driver and, on discovering that he is not a British citizen with a British driving licence, ask to see his driving licence. In response, a foreign driving licence is produced, and that is valid for one year. But one needs to look at the purposes of the production. The purpose of producing even a doctored, not genuine foreign driving licence is to persuade the police that one is driving lawfully; it is no more than that.

There is a culpability difference here; Someone may seek to establish their identity by the production of an unlawful document when in fact they are here lawfully, and their only purpose in so doing may be to avoid the allegation of driving otherwise than in accordance with a licence. That kind of offence would be dealt with at a very low level in magistrates courts, and is vastly different from an offence at the top end of the scale. I have my concerns about the fact that we are dealing with such a huge range. I hope that the Minister can distinguish, both in his mind and for me, between the person whose intent is to cause serious mischief and the person whose intent is simply to identify himself, for the purposes of the driving issue only. I am sure that the Minister understands the point that I am rather laboriously making.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Member for Woking made an important point and I am sure that the Minister will deal with it in summing up. However, I am keen to understand the precise relationship between clauses 28 and 27 in the hon. Gentleman's example, where an individual presents a forged driving licence to establish with a police officer, for example, that they are allowed to drive when they are not. Does that count as a clause 27 offence of seeking to demonstrate registrable facts, when it is separate from where I imagine the clause kicks in, which is when someone presents such a driving licence to get an identity card?

Do clauses 27 and 28 distinguish between the presentation of such information for another purpose, which is illegal but quite distinct from the precise purpose that I thought we were trying to tackle—in other words, somebody using a forged foreign driving licence to get on to the ID register with inaccurate and deliberately fraudulent details?

Des Browne (Labour, Kilmarnock and Loudoun)

I need to make it clear that clause 27, which is the fundamental clause in this part of the Bill, is designed to tackle the misuse of identity documents, full stop, not just identity documents as ID cards. It is not intended to tackle the circumstances where a person may, for example, under our road traffic regulations, have used a foreign driving licence for longer than they were entitled to drive with it as proof of their ability to drive in the United Kingdom. The clause is intended to deal with people who are in possession of documents that are routinely used as identity documents when they know that they are not entitled to be in possession of them because they belong to other people or are false documents. That is clear. I thought that hon. Members understood that, because we passed over clause 27 with so little debate.

Clauses 27 and 28 have not only to be seen in the context of the identity card scheme; they are about criminalising the unlawful possession of identity documents. Consequently, there needs to be a definition of such documents. As driving licences are routinely used as identity documents, they are included in clause 28. The hon. Member for Woking seeks to delete the reference to foreign driving licences to make his point, but that deletion would leave in British driving licences and remove foreign ones. We have to resist the hon. Gentleman's amendment for that reason, if no other. I resist it in principle in any event, because the Government's position is that driving licences, whether foreign or British, are routinely used as identity documents and their unlawful possession—whether they are forged or belong to other people—ought to be criminalised.

Humfrey Malins (Conservative, Woking)

The Minister's answer was helpful. I shall pose this question, although I should probably know the answer. If a person, on being stopped by a police officer, is asked to identify himself, or asked some other question that would lead him to do so—such as, ''Are you driving lawfully?''—and produces a UK or foreign driving licence that is fraudulent, or made up and invented for the purpose of satisfying the officer about the driver, such a matter is currently triable in the magistrates court. I think that I am right in saying that such an offence under the Bill would not be indictable only; if it were, the magistrates courts would be brought to an absolute halt, because such offences are so regular.

Is the Minister able at this stage to confirm whether the defendant in such a case will be caught by subsections (1) and (3)? If that is so, he will be charged on an indictable offence only.

Des Browne (Labour, Kilmarnock and Loudoun)

For those circumstances, the hon. Gentleman might want to look at subsection (5) or clause 27.

Humfrey Malins (Conservative, Woking)

Yes, I suppose the question boils down to what the prosecuting authorities decide to charge. I would not want the magistrate's courts to find themselves swamped with cases which immediately, because of the sentencing powers, have to be transferred by way of clause 6 to committal.

Des Browne (Labour, Kilmarnock and Loudoun)

It is envisaged that those who make decisions about prosecution will take into account all of the relevant circumstances as to whether or not to prosecute. Proportionality—whether it is appropriate to prosecute—is a circumstance that prosecuting authorities should take into account. As for penalties in the circumstances that the hon. Gentleman figures—a distinction that the hon. Member for Sheffield, Hallam might benefit from as well—there are proportionate penalties in subsection (7).

Humfrey Malins (Conservative, Woking)

The Minister is right. The point was worth laying before him. I am satisfied with his reply. As far as amendment No. 232 is concerned, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I beg to move amendment No. 223, in page 24, line 43, at end insert—

'(i) an official Birth Certificate.'.

I welcome you to the Chair, Ms Anderson.

The clause seeks to make obtaining by forgery any number of important documents an offence. In order to obtain a passport, one of the official documents that has to be produced is a birth certificate. The clause will be particularly important in the initial issue of an identity card and, while one would not ordinarily carry a birth certificate around to prove identity, we need to ensure that the whole system is robust. If it is not robust, it will be brought into disrepute. I imagine that for those who do not have passports, a birth certificate is one of the documents that they will be required to produce when the identity card is initially issued.

Anecdotally, a number of people are able to obtain false passports by first forging or obtaining a birth certificate that is not properly and lawfully issued. There is a case, at least, for including a birth certificate within the clause. If the Minister thinks I am wrong, I will be interested to hear his explanation why.

Des Browne (Labour, Kilmarnock and Loudoun)

The response to the understandable argument of the hon. Member for Cotswold (Mr. Clifton-Brown) is twofold. First, the forgery, alteration or attempted use thereafter of a birth certificate already comes within the Forgery and Counterfeiting Act 1981. The Act, as I have indicated, has similar penalties to those being promulgated here. In addition, it would be an offence for someone to have within their custody equipment designed for the making of birth certificate copies. The offence is liable to the same penalty as a clause 27 offence. Otherwise, the answer to the hon. Gentleman's argument is that an official birth certificate is an inappropriate addition to this list because it is not an identity document, but the record of an event.

I must admit that, as I read that, I thought that of course a driving licence was not an identity document either in that sense, but evidence of an individual's ability or legal capacity to drive in this country. When I thought of that, my inclination was to go away and think again. However, I then recollected that a birth certificate specifically states: ''This is not an identity document.'' It would seem inconsistent to define it as an identity document in a piece of legislation, given that there must be a statutory basis for that statement.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I hear what the Minister says, but a birth certificate is one of the documents that one is required to produce to prove one's identity while obtaining a passport. For that official purpose, it is regarded as an identity document. When an ID card is first issued, people will have to produce proof of identity, presumably. If they do not have a passport or a driving licence—there must be a number of people in this country with neither document—the next document that everybody has or has had at one stage is a birth certificate. It is a universally applied document, and although it may state that it is not an identity document, it is regarded as such.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman opens up an interesting area of debate. The facts that I am aware of show an apparent contradiction between practice and the legal position. I am afraid that with the information that I have at present, I am not able to untangle that conundrum for myself, never mind for the Committee. However, I know that a birth certificate is not accepted on its own for passport applications, which the hon. Gentleman mentions.

I am not prepared to concede that a birth certificate is accepted as an identity document because it states specifically that it is not one. I suspect that it is included in the passport application process to communicate the facts that it conveys about the event to those required to make a decision about the issue of a passport, if that is not too convoluted a way of putting it.

I resist the amendment for the obvious reason that a birth certificate has clearly emblazoned on it ''This is not an identity document''. To agree to the amendment in that context would create a statutory contradiction. However, I shall think about the matter and, if necessary, come back to Parliament about it.

Geoffrey Clifton-Brown (Conservative, Cotswold)

In view of the Minister's very reasonable reply and the fact that he will reflect on the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

One other area of clause 28 remains of interest: the definition of the UK driving licence in subsection (3). That refers to the licence itself, and, in paragraph (c), to the counterpart of the licence. It is worth highlighting the strange legal status of the counterpart. I do not know, Ms Anderson, whether you have ever lost your driving licence. I have lost the counterpart on a couple of occasions; it is very easy to lose. One carries the photographic card, but the counterpart gets lost.

If a person rings the DVLA and says, ''I have lost my driving licence,'' it asks whether they have lost both parts or one. If the person has lost only the counterpart, the agency says that they have to go to the post office, fill in a form and send in a cheque—a huge bureaucratic process. If the person asks what would have happened if both parts had been lost, the agency says that it would ask for their Switch card number and send a replacement licence by first-class post. So the person puts the phone down, rings back and says, ''I have lost my driving licence.'' The DVLA asks, ''Have you lost both parts?'' and the person says, ''I have now.''

The counterpart of the driving licence has a weird legal status. One has to reclaim it if the licence is still in existence, but if the whole thing is lost, that is fine. That situation seems replicated in a curious way in the matter under discussion. It strikes me that the ID bit is the photographic card, and the counterpart has an odd status. We are replicating what happens elsewhere, but sometimes it is worth highlighting that what happens elsewhere is a bit ridiculous.

Des Browne (Labour, Kilmarnock and Loudoun)

I have some knowledge about the importance of these two parts of a driving licence, and I shall quickly share it. When was I was a Northern Ireland Minister, we used photographic driving licences long before they were available in the rest of the United Kingdom. We used them as proof of ID in the context of the interdiction of electoral fraud. Concern was expressed about people being denied their vote because they did not have both parts of the driving licence. Both parts made up the driving licence. If I am wrong, I shall write to members of the Committee, but I suspect that the root of the provision lies in the road traffic regulations on driving licences under which the licence is both parts, so that people understand that to have in their possession in relevant circumstances just either part of the licence would be an offence. Such a rule has been included in the Bill to clarify matters. I was interested in the hon. Gentleman's short anecdote about what I think was his telephone call to the Driver and Vehicle Licensing Agency in Swansea.

Question put and agreed to.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Unauthorised disclosure of information

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 230, in page 25, line 24, after first 'he', insert 'knowingly or recklessly'.

T

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 231, in page 25, line 26, after 'he', insert 'knowingly or recklessly'.

No. 141, in page 25, line 44, at and insert—

'(4A) It is also a defence for a person charged with an offence under this section to show that the provision of information or the making of the other disclosure in question was in the public interest.'.

No. 229, in page 25, line 38, leave out paragraph (c).

Humfrey Malins (Conservative, Woking)

We have moved to an important clause, which makes whistleblowing an offence. It will be a criminal offence to disclose confidential information without lawful authority to others, such as journalists or loyal members of Her Majesty's Opposition, and information learnt during the course of employment by individuals who have responsibility for

''the establishment or maintenance of the Register; or . . . the issue, modification, cancellation or surrender of ID cards'',

which is deemed to be confidential.

I shall begin by speaking to amendments Nos. 230 and 231, which go together. Under clause 29, a person is guilty of an offence if, without lawful authority,

''he provides any person with information''

that he should not provide. I read the rest of the clause to see whether there were any defences. I was not looking for the whistleblowing provision, but I found the first reference to a defence under subsection (4). Let us assume that I work in such areas and I supply someone with information, because of negligence on my part, utterly accidentally. It cannot be impossible that I supplied information accidentally, not intending to cause any harm nor necessarily aware at the time that I had carried out such action.

I could not avail myself of subsection (4) because that would enable me to have a defence if I could show that, at the time of the alleged offence, I believed on reasonable grounds that I had lawful authority to provide such information. I could not possibly say that, because it would not apply in my circumstances. I put before the Committee the proposition that someone can supply another person with information somewhere between accidentally and negligently, but without what might be described as a level of criminal intent.

Such a person would not have a defence under the clause, which is why I want ''knowingly or recklessly'' inserted into the clause. There might be a better phrase than that. ''Reckless'' is not a word that actually commands great respect in criminal law at present, and has not done since the case of Caldwell. I am trying to cover the morally innocent person who supplies information to another accidentally or carelessly, but without the intent to cause a problem. The position of the whistleblower is different, because he or she supplies the information wholly and intentionally with a purpose. I shall deal with that in a moment. However, in amendments Nos. 230 and 231 I am trying to cover an individual who has, at worst, been negligent.

Amendment No. 229 would omit paragraph (c). Subsection (3)(c) states:

''information is provided or otherwise disclosed with lawful authority if . . . it is made in pursuance of a Community obligation''.

I have no idea what community obligations are. By seeking to omit paragraph (c), I can at least draw from the Minister some explanation as to what is meant by ''a Community obligation''.

Amendment No. 141 would widen subsection (4) to say that it shall be a defence if

''the provision of information or the making of the . . . disclosure was in the public interest.''

That is a public interest, or whistleblower, defence. Because such worlds are too complicated for me, I cannot envisage circumstances in which a whistleblower may want, or feel it essential, to provide some information to the public via the press or someone else. However, whistleblowers have been badly treated by Governments over the years, and the Government, on this occasion, ought to consider carefully our amendment on whistleblowers and the issue of public interest. Perhaps the whistleblower wishes to make public some dreadful scandal—I cannot say—but at least amendment No. 141 gives the Minister an opportunity to speak to us, hopefully at some length, on whistleblowing and a possible whistleblower's defence.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

In respect of the amendment moved by the hon. Member for Woking, which would insert the words ''recklessly and knowingly'', we may differ on that matter. We have been accused of being woolly liberals throughout most of the debate on ID cards, but in respect of measures that are included to protect privacy we will join the hon. Gentlemen opposite in the leather-clad authoritarian camp, which is perhaps the converse of a woolly liberal. We believe that if private data is included, there needs to be some protection for it, and the best way to do so is to ensure that there are clearly specified offences for people who breach those levels of protection.

However, we are in sympathy with the hon. Member for Woking on whistleblowing and joined him in signing amendment No. 141. I can imagine circumstances under which whistleblowing may be appropriate. Someone in the hierarchy may seek to ensure that someone is issued with an ID card who should not have one, or has no entitlement. If that is so and an operator in the system becomes aware of a card being issued falsely, we want to be clear that they can come forward and declare to the authorities that that has happened without them being at risk of committing an offence.

I can also imagine circumstances, following those that we discussed earlier, where there is an abuse of the system. We have set out a series of safeguards governing how law enforcement agencies and others, including public authorities, can use the data in the national identity register. An operator of the register may become aware of wholesale trawling and searches that appear to be outside the scope of the law, and an agency might, for whatever reason, have taken it upon itself to use the data in a way that was not intended to be unlawful. If the operator came forward again and reported that appropriately, are we clear that they could do so without falling foul of the legal provisions in clause 29? The original drafting of the clause does not make it explicit that they could come forward and do that.

Amendment No. 141 has been tabled in order to get those assurances, and that is why we have associated ourselves with it. The Minister should be able to put on the record that an individual who became aware of some form of abuse of the system would not be liable to prosecution if they came forward and reported that.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I rise briefly to make a point that is slightly wider than the amendments, but I hope that you will consider that to be in order, Ms Anderson, as we seem to be adopting that as our process, and then not having a clause stand part debate.

I am concerned about clause 29. Its first lines state:

''A person is guilty of an offence if, without lawful authority—

(a) he provides any person with information that he is required to keep confidential''.

This is another clause that has much wider ramifications than merely identity cards. This is labelled as an identity card Bill, but as we scrutinise it in depth we find that a number of its provisions go far wider than that. The Minister shakes his head, so I might have got the wrong end of the stick on the measure I have just quoted, but it does not say that it is related to identity card offences. It is a completely bland and general statement.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman should read further. Subsection (2) greatly narrows the circumstances in which a person can commit that offence, and brings it within the four corners of the Bill.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I accept the Minister's point; he is right.

Therefore, I move on to amendment No. 141, which I call the whistleblowing amendment. We need some positive assurances on that. The recent history of whistleblowers shows that they tend to get punished for disclosing facts that turn out to be in the wider public interest. The Bill is pretty draconian in terms of what the state can and cannot do. Let us suppose that there was a level of collusion at the top of some of our organisations and that, because of the secrecy provisions imposed by the Bill, that would never come out into the public domain if it were not for the activities of a whistleblower. We want to encourage whistleblowing. I think that that has been Government policy in the past, although they seem to have forked tongues on this issue; sometimes they seem to encourage the activities and aspirations of whistleblowers, and yet they also appear to punish them. Therefore, it is difficult to know where the Government stand.

Humfrey Malins (Conservative, Woking)

I have two brief points. First, juries have historically always been very sympathetic to whistleblowers—not unnaturally, because of public interest. Secondly, my hon. Friend may recall that a diplomat in one of our east European embassies blew the whistle on what was thought to be dishonourable conduct by certain people seeking to enter this country, and on the fact that it was thought that the Home Office was rubber-stamping applications improperly. He felt that that should be drawn to the attention of the wider public, and it could be argued that he performed a good service.

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend must have clairvoyant powers, because I was about to go on to give the Committee precisely that example. I will not repeat it, but there are other examples. There have been two serious examples of whistleblowers in the European Community, both of whom have lost their jobs; one of them subsequently brought down the entire Commission by blowing the whistle on corruption with regard to the European Union budget.

Therefore, the activities of whistleblowers sometimes do the public a great service. I hope the Minister will make some fairly positive comments, and speak at length about why he will—or will not—accept amendment No. 141. We want to encourage whistleblowers, because things can otherwise be covered up and might not come into the public domain.

Des Browne (Labour, Kilmarnock and Loudoun)

I will deal with amendments Nos. 230 and 231 first. They seek to provide that a person would be found guilty of an offence of ''unauthorised disclosure'' of information only if they ''knowingly or recklessly'' disclose to another person information that they are required to keep confidential. That information is defined more precisely later in the clause.

The hon. Member for Woking is consistent. He has consistently attempted to make liability dependent on intention throughout the Bill and he seeks again to do so. I give him the same response as I always do in that regard: the amendment is unnecessary.

On a fair and proper reading of it, subsection (4) provides a defence for someone who believes on reasonable grounds that they had authority to provide the information at the time they provided it. Therefore, it covers anybody who is acting in good faith. It will cover a person who acts accidentally. Such a person has a mens rea that they believed that they were acting properly at the time. That is the very essence of accident.

Humfrey Malins (Conservative, Woking)

It is quite the opposite.

If I were to go through a red traffic light accidentally, I, potentially, would have no knowledge that I had done so. I have no idea how I am expected under the clause to supply the information. If I were accidentally but negligently to press wrong buttons, put something into the wrong envelope, or get through to the wrong telephone number and start spilling the beans before I knew who I was talking to, that would involve accident. However, I could not then stand up and say, ''My defence is that I believed on reasonable grounds that I had lawful authority to do what I did.'' I would have had no such belief, because I was being negligent. I would have had no belief either way. Does the Minister not understand the subtle difference that is involved?

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, he is being too subtle with his difference. I might have to defend someone who went through a red traffic light accidentally. Even if they were required to do so, they would be convicted because going through a red traffic light is an absolute offence. It does not matter what the person's state of mind was.

Someone cannot commit the offence that we are discussing in the circumstances in which the hon. Gentleman figures that people would be acting; the proper interpretation of subsection (4) allows for the defence I mentioned.

Humfrey Malins (Conservative, Woking)

There are circumstances in which going through a red traffic light involves an exact parallel. I could go through knowingly, in a hurry, and I would be guilty of an offence. I could go through utterly accidentally, not seeing the red light, and I would be guilty of an offence. Another circumstance would be when I go through it because the alternative of putting my brakes on would result in a major crash involving vehicles behind me. That is more on a par with reasonable excuse. That is subtly different in its context from the accidental provision to which I am referring, which could be opposed to my justifying my conduct.

Des Browne (Labour, Kilmarnock and Loudoun)

I have the utmost respect for the hon. Gentleman, as he knows, but I think he stretches his analogy far too far. The circumstances that he figures are in my view, and in that of the Government, covered by subsection (4). I ask him to accept that assurance from me. He asked me why and I say that they are covered because a person who acts in the way that he described believes that they are doing their job, albeit they might be mistaken. They have reasonable grounds for acting in the way that they did, albeit they were mistaken. They could not be convicted of the offence.

I will now discuss the defence of public interest. I listened carefully to what hon. Members have said in relation to whistleblowers—

Sitting suspended for a Division in the House.

On resuming—

Des Browne (Labour, Kilmarnock and Loudoun)

I was about to come on to whistleblowing. To contextualise my remarks, I should say to the Committee that the principal purpose of the clause is to prevent unauthorised disclosure of personal information. That is the objective. Such disclosure is a menace that I am sure the Committee thinks it appropriate to interdict in this way.

Hon. Members are of course right to say that the provision will also criminalise the unauthorised disclosure of other information, such as the audit trail information in paragraph 9 of schedule 1, or any information related to the functioning of the scheme that comes into the possession of an individual in the context of clause 29(2).

The point that I was about to make before we left to vote was that Labour Members share the interest of Opposition Members in allowing public interest disclosure when it is appropriate. I remind Opposition Members that the Public Interest Disclosure Act was not passed until 1998. That, of course, was the year after a Labour Government came to power following 18 years of Conservative government. During those 18 years I do not think that an attempt was made at making equivalent legislation. I cannot for the life of me remember how Opposition Members voted on the 1998 Act and whether they supported it, but I am sure that they remember. If they are late converts to public interest disclosure, they are all the more welcome.

It is entirely appropriate that, in the circumstances that hon. Members figure, people to whom the clause will apply should have an opportunity to bring their concerns to an appropriate authority. I accept that there may be cases in which they feel that bringing those concerns before their management is not appropriate. Under the scheme and the Bill, those people will have access to a number of commissioners who are entirely independent of the Home Secretary—the Secretary of State—and the Government, and they can make their complaints to them. An appropriate procedure is laid out in the Bill for the investigation of some complaints. In my view, there is a comprehensive set of circumstances for investigation in the Bill, should people wish to make such complaints to the commissioner. [Interruption.] The hon. Member for Woking asks what clause that provision is in. It is the clause that we debated this morning—

Humfrey Malins (Conservative, Woking)

Did we?

Des Browne (Labour, Kilmarnock and Loudoun)

Sorry, the clause that we agreed would stand part of the Bill this morning, which set up the commissioner for this scheme and the intelligence services commissioner for those circumstances relating to security matters. In my submission, that construct provides a more than adequate opportunity for anybody with concerns that could normally be described as those that lead to whistleblowing. There is no need for an additional provision in those circumstances.

Amendment No. 229 would exclude from the definition of ''lawful authority'' disclosures made

''in pursuance of a Community obligation''.

It is interesting how often, Pavlov-style, the Opposition react to any reference to the European Community. The provision is intended to cover any EC regulations that have direct effect, rather than requiring implementation in UK law. Without reference to regulations that may have direct effect, there will not be the necessary coverage to allow a person to say that they had lawful authority by the state of the whole law that applied to the United Kingdom when they made the disclosure.

Humfrey Malins (Conservative, Woking)

I am very unclear on this matter, which is entirely my fault. Are there Community laws that override our laws on whistleblowers and the clause?

Des Browne (Labour, Kilmarnock and Loudoun)

No. I suspect that the hon. Gentleman is being slightly mischievous. As he knows, our domestic law is now made up of, among other things, EC regulations that have direct effect. That has been the situation ever since the Conservative party took us into the European Union, as it now is known. I would have thought that Opposition Members had got used to that by now.

If one is seeking to set out the parameters of ''lawful authority'', one needs reference to the possibility that one may be seeking legislation as a direct effect and that comes from Europe. ''Lawful authority'' is properly defined if it is so defined by reference to such legislation. I have nothing further to add. I hope that the amendments will now be considered unnecessary.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I am still concerned about the Minister's explanation of public interest disclosures. What the Secretary of State—or, indeed, the commissioner—considers in the public interest may not be the same as what the general public would consider in the public interest. We saw that in the example given by my hon. Friend the Member for Woking. The instance that he gave was passed to the Government quietly. It was not until it was put into the national press that anybody took any action and, because it was in the national press, the employee concerned lost his job. We need a little more assurance that a whistleblower will not be caught by the provision before I can urge my hon. Friend to withdraw the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman is entitled to act as he feels he must on this amendment, as is his hon. Friend. The Official Secrets Act, for example, does not have a public interest defence because it provides that if the information has been disclosed the damage is done and it is too late to undo it. The same view applies in this case.

I would not want the Bill to allow a person to put information about another individual in the public domain and defend that through a public interest defence, because the damage would then be done to the individual. Important private information about individuals is to be held in the register. With respect to the hon. Gentleman, I am not going to write into the Bill a carte blanche that allows people to do such damage and subsequently hope that they may able to persuade some court or other that it was in the public interest—particularly when there is adequate opportunity for them to make complaints of the sort that hon. Members figure may be appropriate for a person to blow the whistle on, to one of a number of commissioners.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I said before the Division that I am not worried about a whistleblower who deliberately blows the facts on an individual to get some sensation about them on to the public record. It would be reasonable for a whistleblower to be caught in such a case. I am more interested in when the system—the commission—does things that are not in the public interest. We have heard a lot about things that can be done without an individual's consent. Let us suppose that there was collusion along the line, people's affairs were being investigated unreasonably and the only way that that could be brought to the public's attention was by a whistleblower, and then the whistleblower gets caught by the provisions. Does the Minister agree that that would not be in the public interest?

Des Browne (Labour, Kilmarnock and Loudoun)

I understand the point that the hon. Gentleman makes, but he is forcing his argument into a corner into which it will not fit. There is already a construct in the Bill that allows supervision to ensure that it does not operate in the way he suggests. The appropriate person with whom to lodge a complaint about such a matter is the appropriate commissioner. I cannot figure circumstances where there will be collusion between the commissioner, the police and those with responsibility for the scheme that will leave a person with no alternative other than to disclose such information. The whole system would have to have chronically broken down. The independence of the commission would be called into question in those circumstances. I cannot believe that the scheme could continue to function at all if those circumstances pertained.

Humfrey Malins (Conservative, Woking)

In so far as whistleblowers are concerned, my hon. Friend the Member for Cotswold has raised some good points.

We are not entirely satisfied with what the Minister has told us this afternoon. He has said that the person who provides this information purely accidentally, although possibly negligently, but with no mens rea to cause an offence, will not be prosecuted. That is helpful to know. These words are in Hansard and we know that such a person, on the Minister's very wording, will not be prosecuted.

The point about the community obligation remains interesting, but not fully explained. Having said that, I acknowledge that the Minister has given me his best explanation and, courteously, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 198, in clause 29, page 25, line 32, after 'issue', insert 'manufacture'.

The amendment—here for the sake of tidiness—is simple stuff. If a person can be involved in all the other processes, should not ''manufacture'' be included to cover all eventualities and to ensure that there is no unnecessary unauthorised disclosure of information?

David Curry (Conservative, Skipton and Ripon)

I wonder what would happen if the cards were being manufactured overseas.

Patrick Mercer (Conservative, Newark)

That is an extraordinarily good point; they are highly likely to be manufactured overseas. Funnily enough, I have examples of cards here—Italian and American. As my right hon. Friend says, neither is manufactured in the country in which it is to be used, so that is an apposite remark.

Des Browne (Labour, Kilmarnock and Loudoun)

The Government believe that the amendment is unnecessary, as those who manufacture cards are not likely to have—indeed, will not have—access to any confidential information on individuals. The issuing of the cards is the relevant point at which the information is put on the card. The manufacturer will produce a blank card—possibly with an empty chip—which will not involve information held on the register.

The important issue is the personalisation of the card and/or chip. That is when the information is tied to the card. That is clearly covered by ''issue'' in terms of the activity that gives a person access to information. ''Manufacture'' is unnecessary and I resist the amendment.

In an intervention, the right hon. Member for Skipton and Ripon (Mr. Curry) sought to draw me out as to where the cards will be manufactured. At this stage, I do not know.

David Curry (Conservative, Skipton and Ripon)

It is possible that the cards could be manufactured overseas. If we book a ticket on British Airways at the travel office, that ticket is going to be printed out in India. The offshoring of large—[Interruption.] No, a great deal of computer processing takes place in India. The manufacture of cards taking place overseas is entirely possible and would be economic. The cards could be brought back to the United Kingdom in batches under conditions of high security.

Des Browne (Labour, Kilmarnock and Loudoun)

The right hon. Gentleman suggests that such manufacture of cards is a possibility. He may be right. Manufacturing might be carried out somewhere beyond the United Kingdom. I am concerned about the issuing of cards, which is the point at which personalised information is put on to them and when the criminal offence bites. I am satisfied that the clause as drafted will allow us to protect that stage in the process, so I will not accept the amendment.

Patrick Mercer (Conservative, Newark)

All that I can do is to accept the Minister's reassurance that the manufacture of the card is not the crucial part of the process, which is the point at which the information is inscribed, squirted and electronically put on to the card one way or another. I am grateful to him. The matter has clearly been thought about and is covered by the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

We still need to deal with other points arising from the clause. The jurisdictional argument of the right hon. Member for Skipton and Ripon is important. The clause aims to ensure that people are deterred from divulging information from the national identity register. This is about not only issuing the card, but keeping secret the information that is held on the register. It seems that, if the data are to be processed outside the jurisdiction of the United Kingdom, serious questions must be asked about the extent to which we can rely on the safeguards under the clause. Safeguards mean something only if we can take action against people who have disclosed data without authorisation.

It would be helpful to receive information from the Minister about the Government's intention. Will the processing of the national identity register take place only in the United Kingdom? If not, we want him to assure us about the likelihood of action being taken against, for example, a data processor in the Philippines or in countries in which such work takes place. If that data processor disclosed data, such matters would relate to whether the offence was extraditable and how enforcement action could take place.

We are looking for an assurance that such matters will be processed within the United Kingdom, as a result of which clause 29 measures may be taken against data processors if they breach confidentiality. If such matters are processed outside the United Kingdom, we must understand how the clause will act as a deterrent in such circumstances.

As for the offences, legal remedies will have to be invoked. Experience of the police national computer, which is an equivalent process, shows that powers have had to be invoked. Processing agents have taken data from the police national computer, often in the context of marital breakdowns and domestic disputes, and released the whereabouts of a person. I recently read of a case in which someone was prosecuted and rightly sentenced for such action. We must recognise that it is likely that clause 29 powers will have to be used and understand the extent to which we can depend on them.

I do not have to hand details of penalties for comparable offences. For example, I would have thought disclosure from the police national computer, the Criminal Records Bureau and national health service records to be comparable areas where we wish to see whether offences under the Bill will bite in a similar way and have a common understanding of how they kick in.

As for understanding the seriousness of disclosure, in another debate we touched on people who take part in witness protection programmes. That remains an issue of concern. We debated the fact that the Secretary of State will deliberately be able to create false entries in the register to protect people under witness protection programmes. We can imagine that such data will be a major target. If the national identity register were entirely comprehensive, some people who we will be dealing with under the clause will have been induced to disclose data in an unauthorised way to get back at people who had given evidence in multi-million pound cases as well as criminal, terrorist and other serious cases.

The inducements will be serious. We want to know that people will face suitable penalties if they disclose data in cases when the potential outcome is the most serious of all because, when an individual's new identity is exposed, they will often face the threat of death.

The final concern involves subsection (3)(b), which deals with the lawfulness of disclosing information

''in pursuance of an order or direction of a court or of a tribunal established by or under any enactment''.

That opens up the possibility that personal data of the kind that we have talked about—the audit data in paragraph 9 of schedule 1—will be disclosed under court orders in a lawful way. The public need to understand the breadth of this provision.

We discussed the hurdles that have to be cleared if law enforcement agencies want to access this data. Court orders may be very broad. There is some evidence of that from the field of internet data; people have used Police and Criminal Evidence Act 1984 powers, and in some civil cases there have been attempts to get data about what people have been doing on the internet. The courts have created an order and those data have had to be disclosed.

With regard to subsection (3)(b), I can envisage a wide range of circumstances in which we would think we had safeguards in place. If the police wanted to launch a prosecution, they would not be able to access the data, because unless they could prove serious criminality they would be told, ''You cannot have all these audit data.'' However, somebody else who is going through a matrimonial case or another case in court and who wants to prove a point may be able to secure a court order that unlocks all those data and may release them from the system. As we create this system, people need to be aware that such circumstances may apply and that some safeguards put in place by clause 29 may be bypassed by many forms of potential authorised disclosure.

The tribunals point is important. I am surprised by the large amount of data that can be disclosed to tribunals, particularly industrial ones. I foresee circumstances in which the audit trail data in particular may be cited in industrial tribunal cases: somebody might want to prove that a person was in a particular location at a particular time and might seek that disclosure through the tribunal. It seems that that is lawful under this provision.

Some important issues are raised by clause 29, and I would appreciate responses to all of them. One of the big questions involves the ability to take effective enforcement action, particularly in the context of not understanding where the data will be processed and not having, as yet, any assurances that that will take place within UK jurisdiction.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman raises a number of interesting points that merit answers. I will answer to the extent that I am able to do so.

The hon. Gentleman asks if it is a proper interpretation of this part of the Bill that this offence can be committed only within the UK? The answer to that is yes, to the extent that what is known as the actus reus—the actual action—would need to have taken place in the United Kingdom before the UK criminal courts would have jurisdiction. There are circumstances involving some very serious crimes where the UK courts take jurisdiction for crimes committed anywhere in the world. War crimes is an obvious example. There is a statutory basis for that, and we know why that should be the case. However, for these offences, jurisdiction will be restricted to an actus reus in the UK.

The hon. Gentleman asks where the processing of that information will take place. At present, I cannot give him the certainty he seeks, because the procurement process in relation to certain parts of this scheme are required by EU law to be open. That aspect will be as open as possible so that the Government can be assured that they get best value for money. However, I can say that the agency issuing the ID cards will be UK based, and it is intended that that agency will build on the UK Passport and Records Agency.

I am very mindful of the fact that the law on procurement allows the Government to restrict matters to UK-sourced procurement, if that is necessary on grounds of national security. All those issues will be taken into account. I already see arguments on the points mentioned by the hon. Gentleman, because those points are related to potential national security issues. There will be arguments for ensuring that we can hold jurisdiction on such activities appropriately so that penalties can be brought to bear on the relevant people.

The hon. Gentleman asks about the proportionality of the penalty and for some indication of equivalence in other legislation. Under section 9 of the Rehabilitation of Offenders Act 1974, disclosure of spent convictions attracts a maximum sentence of six months. Offences under section 59 of the Data Protection Act 1998 attract a maximum penalty of a £5,000 fine. The penalties envisaged in clause 29—

''imprisonment for a term not exceeding two years, or . . . a fine, or . . . both''—

are not disproportionate to the equivalent provisions in other statutes.

I understand why the hon. Gentleman says that such actions could be conducted in the context of much more serious behaviour. If there were evidence that a person was party to a conspiracy such as he figures, I suggest that they would be prosecuted for something much more serious than the unauthorised disclosure of information from the identity register. Perhaps there would be an alternative charge as a fallback position, in case the principal behaviour was not properly criminalised. I do not think that I have anything further to say; I have covered the three issues.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The additional point—just to be clear across the Committee—is that there is that breadth of possible disclosure in the context of court orders and tribunals. The public need to be aware that such disclosure is potentially much broader than that in criminal investigations.

Des Browne (Labour, Kilmarnock and Loudoun)

The simplest answer is that the hon. Gentleman is right. He will accept it from me that it would be entirely inappropriate for Parliament to fetter courts that might properly make such orders in appropriate circumstances, bearing it in mind that such orders will not be made willy-nilly and will be subject to the normal rules on the disclosure of evidence or information.

It would not be appropriate for Parliament—having allowed the courts for many decades, if not centuries, to make such orders—to seek to restrict them. However, the hon. Gentleman is right to bring the issue to the attention of those who may be interested.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Clause 30 - Providing false information

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 228, in clause 30, page 26, line 15, leave out from 'false' to end of line 16.

I seek nothing more than an undertaking from the Minister that he will reconsider clause 30(2)(b). The amendment would remove the words

''is reckless as to whether or not it is false.''

I shall give the reasons for reconsidering the provision. It deals with someone who provides false information to someone else, perhaps in confirming the contents of an entry in the register. Such a person providing false information would be liable to penalties.

Clearly, the Minister has tried to assist the defendant by saying that the defendant has to know or believe the information to be false. That introduces an element of moral culpability—that is to say, the matter goes beyond the actus reus and involves some form of mens rea.

My point is that ''reckless'' is a very difficult word. It is increasingly frowned on in criminal law. In road traffic legislation, there used to be a charge of driving furiously. I am not even sure that it does not still exist in some jurisdictions, but I think that it has been taken away from our road traffic Acts. There used to be a charge of reckless driving, which I imagine fell somewhere between driving dangerously and driving without due care and attention. Reckless driving is no longer a charge.

The word ''reckless'' is used with tremendous caution in criminal cases because it is difficult to define. It has been particularly condemned in certain criminal damage cases. For example, what if someone slams down the telephone in a public kiosk when in a temper, and the thing breaks in half? It cannot necessarily be said that that person intended to break it in half. They were terribly angry because they could not get through but, on the other hand, there is a certain degree of moral culpability in slamming it down.

Case after case involves talking about recklessness and whether that is an essential element of an offence. All I would say to the Minister is that that is difficult territory. Judges find it extremely difficult to direct a jury on what ''reckless'' actually means. Does it mean negligently or carelessly? To what extent does recklessness involve knowledge? Directions to juries from judges over the years in cases using the word ''reckless'' have been fraught with difficulty.

If the Minister thinks that it is essential to include subsection (2)(b), so be it. However, we are doing our duty in Committee by pointing out the problem with that word, of which he, as a very skilled lawyer, will be well aware. Will he ponder the position between now and Report to see whether any improvement could be made?

David Curry (Conservative, Skipton and Ripon)

We have listened to quite a lot of Latin phraseology today, in a little private discourse between the lawyers. Those of us who are not lawyers and are not familiar with that phraseology occasionally come across an Anglo-Saxon word that we think we understand, but then we see it in the context of the Bill and begin to wonder what on earth it can conceivably mean. I speak as a simple hack, not a lawyer, and I know that if I put the word into a piece, my editor would say, ''What do you mean by it?''

I had one rule when I was a Minister: I would never sign a letter that contained the word ''appropriate'', on the grounds that it always stood for something else. It meant ''right'', and ''not appropriate'' meant ''wrong'' or ''silly''. Yet I found that the word is used endlessly in Government to disguise what is actually meant.

I take the point made in the analogy of the telephone. I have to tell my hon. Friend the Member for Woking that I am not well versed in the operations of photocopiers of the sophistication of those in Portcullis House. There are occasions when one seeks to make them do a simple task, and one is overcome by a very powerful urge to express one's disapproval in a physical form. Whether that would be described as a ''reckless'' action I am not quite sure.

Surely, if ''reckless'' stays in the Bill, there has to be some test of what is meant by recklessness. All that the word is doing is standing as code for a much longer explanation of what is ''reasonable'', a word that is constantly used in the Bill. One would have to start by defining what ''reckless'' could conceivably mean before one could discover whether something was reckless or not; that must depend on particular circumstances. I realise that, in legislation, it is necessary at times to use particular words that are difficult to define, but about which one has an instinct as to what it is trying to do. That is why I think that ''not appropriate'' is such an indispensable phrase for Government.

I hope that the Minister will think about the matter again. I looked at the word and thought, ''This is curious; it looks a rather direct word.'' Then I thought, ''What does it mean?'' I could write a significant dissertation on that in Anglo-Saxon and still not get us very far. I am sure that the Minister would like to reflect on the matter.

Des Browne (Labour, Kilmarnock and Loudoun)

I shall attempt to give the right hon. Gentleman and the hon. Member for Woking a relevant if not an appropriate response to their arguments.

The clause seeks to protect the integrity of the information on the register by interdicting—criminalising—behaviour that deliberately seeks to put information that is wrong on to the register or action that is carried out in a frame of mind in which the person could not care less about the consequences of his actions. That is my understanding of what ''recklessness'' means. In my days of practising criminal law it was a phrase that was well known to those of us who practised in the courts. It is not easily defined in the sense that the right hon. Member for Skipton and Ripon suggests.

Mr. Curry rose—

Des Browne (Labour, Kilmarnock and Loudoun)

With all due respect to the right hon. Gentleman, who is a wordsmith, my understanding is that recklessness as an alternative to intention is a common feature of the criminal law, but I will check if I am still up to date. In my view, ''reckless'' involves the state of mind of a person who does not care what the consequences of his actions are. Such a person, in this context, ought to be as culpable as someone who intends the consequences. That is why the clause is drafted as it is.

David Curry (Conservative, Skipton and Ripon)

It is important that the common understanding of the meaning of the word should not diverge too far from the strict legal understanding of its meaning. I do not think that the word ''reckless'' is used in common speech with the sort of absolutism—extreme intention—with which the Minister has used it. Similarly, the word ''decimate'' is used to mean wiping out, when in practice it means one in ten. If people were decimated, we would be talking about a relatively modest massacre. What matters is the way people understand the word in common parlance. Surely the Minister could find a better word. ''Reckless'' means a bit over the edge. It does not necessarily mean going hell for leather. He said he would try to find another word, and I think it would be helpful if he could.

Steve McCabe (Labour, Birmingham, Hall Green)

On a point of order, Ms Anderson. For the benefit of all members of the Committee, could I clarify that the word ''recklessly'' is being used in the same sense as it was being used in the previous amendment moved by the hon. Member for Woking. It would be awkward to discover that there were two different meanings for two different amendments where the same word was employed.

Janet Anderson (Labour, Rossendale and Darwen)

The hon. Gentleman's point is a matter for debate and not a point of order.

Des Browne (Labour, Kilmarnock and Loudoun)

I am reminded of my early days as a solicitor in the west of Scotland when a man handed me two summonses, one for a breach of the peace and the other for being drunk and incapable. When I asked him how he was pleading, he said he was pleading not guilty to both as they occurred on separate occasions. I said to him, ''What is the defence to the breach of the peace charge?'' He said, ''I was too drunk to be able to make that sort of noise. That is my defence.'' I said, ''Well, what is the defence to the being drunk and incapable charge.'' He said, ''I am a teetotaller.'' I said, ''There is an inconsistency here.'' He said, ''You are young. You will learn. There are two separate cases and two separate defences. Just get on with it.''

The hon. Member for Woking tabled an amendment to include ''reckless'' in one clause and an amendment to remove it from another clause. He understood its meaning in the one case and did not understand it in the other.

David Curry (Conservative, Skipton and Ripon)

It was not appropriate in the other one.

Des Browne (Labour, Kilmarnock and Loudoun)

I understand exactly what the right hon. Gentleman is saying. If he wants an example of a word the misuse of which constantly irritates me, it is the word ''heartless''. It has come to mean something entirely different from its actual meaning. I remember a friend of mine suggesting on one occasion that I should assist him to sue somebody who suggested he was heartless. When I explained that it just meant he was unlucky he was astonished, because he had never used the word in that way. With respect to the right hon. Gentleman and the hon. Member for Woking, I do not think that ''reckless'' has moved into that phase. The word refers to the state of a person's mind and is well understood, particularly in the context of criminal law. It means what I say it means and people understand that.

We ought to discourage people from acting as if they could not care less what the consequences of their actions are when it comes to providing information for the register. Otherwise we will not be able to protect the integrity of the information in the register. Consequently, while I am prepared to see if I am still up to date with the present meaning of the word, at the moment I am defending inclusion in the clause.

Humfrey Malins (Conservative, Woking)

This has been a fascinating if short debate. I pay tribute to the hon. Member for Birmingham, Hall Green (Mr. McCabe), who intervened a moment ago to point out that we had put forward a word in one clause and were challenging it in another. I regret to say that the Minister knows the answer to this as well as I do—which is that lawyers are quite capable of arguing one case one day and the opposite the next.

The Minister has been kind enough to say that he will have a little think. Frankly, the dangers of ''reckless'' have been illustrated during the debate. That is the purpose of the debate. The concept of ''reckless'' as meaning one who could not care less is novel even to me, though I have heard that ''reckless'' means just giving no thought to the consequences of one's actions. The best answer, I suspect, Mr. Conway—I welcome you back to the Chair—is perhaps to say that we know what ''reckless'' means and do not need to say so, because any sensible person knows the meaning. The problem is that that brings problems in the courts.

The Minister is going to reconsider the usage, and I cannot ask more of him. That is a generous offer, and I beg leave to ask to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 199, in clause 30, page 26, line 19, leave out 'two years' and insert 'one year'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments:

No. 200, in clause 30, page 26, line 21, leave out 'twelve' and insert 'six'.

No. 202, in clause 31, page 27, line 17, leave out 'twelve' and insert 'six'.

Patrick Mercer (Conservative, Newark)

I welcome you back, Mr. Conway. I rise to address three amendments—

Richard Allan (Liberal Democrat, Sheffield, Hallam)

On a point of order, Mr. Conway, I think that we are out of sequence. I think that we have moved on from the clause to which these amendments apply, having skipped over them. We now seem to be moving back again. I am confused.

Derek Conway (Conservative, Old Bexley and Sidcup)

I do not think so, but I get confused myself from time to time. We are still on clause 30. We have not done clause stand part yet. It is often helpful if the Committee uses the running order rather than the amendment sheets.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

My amendment paper is wrong.

Derek Conway (Conservative, Old Bexley and Sidcup)

The Committee is testing to make sure I am awake.

Humfrey Malins (Conservative, Woking)

On a point of order, Mr. Conway, I am confused. I have been given another bit of paper. I have just spoken to amendment No. 228, which relates to clause 30.

I now see, Mr. Conway—do forgive me. Amendments Nos. 199, 200 and 202 may now have been slipped into clause 30, whereas on an earlier bit of paper they were in clause 29. That is entirely my fault for not having an up-to-date bit of paper. May I be forgiven, but I think, Mr. Conway, when you called amendments Nos. 199, 200 and 202, you were entirely correct. That was my confusion, for which I apologise.

Derek Conway (Conservative, Old Bexley and Sidcup)

That is quite all right. It is difficult when we are all hopping around the place. As long as we are all happily on clause 30 and amendment No. 199, we can have Mr. Mercer tell us his views.

Patrick Mercer (Conservative, Newark)

Thank you, Mr. Conway. I thought I understood what was going on, but I am now less certain. However, I thank you for your clarification.

Des Browne (Labour, Kilmarnock and Loudoun)

You are better off ignoring it all.

Patrick Mercer (Conservative, Newark)

I leave that up to the Minister, as he intervenes from a sedentary position.

I am speaking to the three amendments, which I hope are short and probing. The first two apply to clause 30 and amendment No. 202 to clause 31. The first two are on providing false information and the third on tampering with the register. All three are intended to probe the Minister about length of sentence and consistency. I have no doubt that there is a simple explanation, which the Minister will make clear.

On amendment No. 199, can the Minister explain why a term of imprisonment should not exceed two years? Why should it not be one year, as we propose in the amendment?

Notwithstanding the comment below clause (30)(c), which states,

''in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 . . . the reference in paragraph (b) to twelve months is to be read as a reference to six months'',

Amendment No. 200 would merely bring consistency in sentencing between England and Wales, and Scotland and Northern Ireland bringing,

''a term not exceeding six months or . . . a fine'',

in both cases.

Amendment No. 202 makes similar proposals. Where clause 31 states,

''on summary conviction in England and Wales . . . imprisonment for a term not exceeding twelve months'',

the amendment would replace ''twelve months'' with ''six'' or a fine not exceeding the statutory maximum on both. That would bring consistency of sentencing between Scotland and Northern Ireland, and England and Wales. Can the Minister explain those three points?

The rest of the debate is in Hansard.