Identity Cards Bill

Public Bill Committee, 19 July 2005.

Identity Cards Bill - Standing Committee D

Clause 19 - Use for purposes of public authorities etc.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 181, in clause 19, page 17, line 32, leave out paragraphs (a) to (f) and insert

‘where it is necessary in the interests of national security or the prevention or detection of serious crime’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: No. 65, in clause 19, page 17, line 33, leave out ‘prevention or’.

No. 66, in clause 19, page 17, line 34, leave out paragraph (c).

No. 67, in clause 19, page 17, line 37, leave out paragraph (d).

No. 68, in clause 19, page 17, line 41, leave out paragraph (e).

No. 69, in clause 19, page 17, line 43, leave out from ‘numbers’ to end of line 44.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Hon. Members will recall that, prior to the conclusion of our proceedings on Thursday, we dealt with amendments Nos. 178, 179 and 180. The matter before the Committee today under amendment No. 181 is broadly similar the issues raised by those amendments. It relates specifically to the powers given to the Inland Revenue and Her Majesty’s Customs and Excise or whatever the new formulation of that merged body is.

The point that I want principally to draw to the Committee’s attention is the breadth of those powers. I accept that the clause excludes the auditing data under schedule 1, but it gives powers in respect of substantial data and, as drafted, it gives Her Majesty’s Revenue and Customs broader scope for accessing data than is strictly necessary. The form of words in the amendment are those used by the Government for clause 1. It is a probing amendment, and I shall be interested to hear the Minister’s response.

Edward Garnier (Conservative, Harborough)

I rise to support amendment No. 181 and to speak to our amendments Nos. 65, 66, 67, 68 and 69, which would achieve by a process of salami slicing the same outcome as amendment No. 181. The further that we get into the Bill, the more horrific is the creeping nature of the powers that the Secretary of State will be accorded. Although the Minister of State has accepted that we are discussing a Christmas tree of a Bill, the glaring nature of that description becomes more apparent as we turn its pages.

Clause 19(1) states:

“The Secretary of State may, without the individual’s consent, provide a person with information recorded in an individual’s entry”,

while subsection (4) deals with the provision of that information without consent to Her Majesty’s Revenue and Customs. It states:

“The provision of information not falling within paragraph 9 of Schedule 1 is authorised by this section where the information is provided to the Commissioners for Her Majesty’s Revenue and Customs”—

and to quote paragraph (f) of the subsection, which I wish to highlight—

“for other purposes specified by order made by the Secretary of State.”

That is a classic example of the vague and impenetrable nature of the Bill. The Secretary of State, no doubt with some form of parliamentary scrutiny—but not much, as we know from experience—is enabled to do more or less what he likes, but we do not know his intentions.

Nick Palmer (Labour, Broxtowe)

In relation to amendment No. 65, which would remove the authority to seek information in connection with the prevention of crime, will the hon. and learned Gentleman give examples of crimes that he considers should not be prevented under the clause?

Edward Garnier (Conservative, Harborough)

That question comes under the heading of a very clever but rather stupid intervention, if the hon. Gentleman will forgive me for saying so.

John Robertson (Labour, Glasgow North West)

But it was a good one.

Edward Garnier (Conservative, Harborough)

If the hon. Gentleman thinks that the intervention was a good one, he has convinced me that my rude remark was justified.

Tony McNulty (Labour, Harrow East)

A rude remark can never be justified.

Edward Garnier (Conservative, Harborough)

The Minister of State is correct—indeed, this is advice he will wish to take himself—that it is never appropriate to be rude.

Let me return to the purpose of the debate. As the hon. Member for Orkney and Shetland (Mr. Carmichael) made clear on introducing this group of amendments, they are probing amendments that are designed to discover what on earth the Government intend. Of course, we can make witty remarks like the one that the hon. Member for Broxtowe (Dr. Palmer) has just made, whichprovide us with a degree of amusement and diversion, but the serious pointis that the Bill provides the Secretary of State with creeping but unknown powers. That is what the Government and the hon. Gentleman need to address.

Does the hon. Gentleman think that it is right and justified that our constituents should be subjected to legislation that their representatives in Parliament cannot discover the limits of? That is a clumsy way of putting it, but I hope that he understands my concern. I urge the Government to give us a rational and candid explanation of what they intend to happen under the relevant subsections.

Patrick Mercer (Conservative, Newark)

Following on from what the hon. Member for Orkney and Shetland and my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, when amendments Nos. 65 to 69 were written several months ago, my colleagues and I puzzled over this part of clause 19 and could not understand why subsection (4) could not be simplified. If paragraph (a) were left in place, paragraph (b) were changed slightly and paragraphs (c), (d), (e) and (f) were struck out, subsection (4) would be much simpler and easier to understand, and it would not lead—both speakers on the amendment have mentioned this—to any form of mission or identity creep.

I remember that, all those months ago during the first debate on this subject, we received no satisfactory explanation from the then Minister. I underscore the words of my hon. and learned Friend by asking the Government to explain why we need this measure. Is it not clear that if the clause were amended as we suggest—this takes into account the comments of the hon. Member for Broxtowe—it would assist the wording of the Bill? I might add that the explanatory notes on the clause are particularly unhelpful in this regard, and I should be grateful if the Minister could enlighten me.

Nick Palmer (Labour, Broxtowe)

I feel that the Opposition are getting away a little too easily with the repeated line that nonsensical amendments are all right because they are merely probing amendments. We should do the amendment justice by considering its content and debating it.

As the hon. Member for Newark (Patrick Mercer) says, the combined effect of amendment No. 65 and the other Conservative amendments would be to reduce subsection (4) to the provision of information

“in the interests of national security”

and

“for purposes connected with the ... detection of crime”.

It would specifically exclude the provision of information for purposes connected with the prevention of crime.

The hon. and learned Member for Harborough asked about our constituents’ views. I think that they would like to see crime not only detected, but prevented. Should he seek to withdraw his amendment, I will be inclined to oppose him, so that we can see whether he is prepared to go on the record as saying that the information should not be gathered.

Edward Garnier (Conservative, Harborough)

I desperately want to help the hon. Gentleman, because he needs it. Even if his desire is genuine, I cannot seek to withdraw amendment No. 65, because it is not the lead amendment. If he wishes to stay here until 7, 8 or 9 o’clock on Thursday evening, however, we may vote on it. I am happy to meet him in this Room to do that, but procedurally, the only amendment that can be dealt with now is amendment No. 181.

Nick Palmer (Labour, Broxtowe)

I am aware of the point that the hon. and learned Gentleman makes, but the Liberal Democrat amendment would have the same effects; the Conservatives are merely a little more blunt about them. It is perfectly proper that the Government should seek not only to detect crime, but to prevent it. That is a significant purpose of this Bill. The amendments are entirely wrong-headed.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman says that my amendment would have the same effect, but I refer him to what it says:

“where it is necessary in the interests of national security or the prevention or detection of serious crime”.

It would not have the same effect at all.

Nick Palmer (Labour, Broxtowe)

I apologise to the hon. Gentleman. He is correct that the Conservative amendment is even more extreme than the Liberal Democrat one. Nevertheless, both amendments are fundamentally against the Bill’s purpose and they are not in line with what our constituents wish to achieve.

Andy Burnham (Labour/Co-operative, Leigh)

I welcome you to the Chair, Mr. Hood. I also welcome back to the Committee the hon. Member for Westmorland and Lonsdale (Tim Farron). I am just sorry that his stay in Cheadle was so successful.

We are considering amendments Nos. 181 and 65 to 69. As Members have pointed out, they relate to the provision of information without consent to Her Majesty’s Revenue and Customs. The clause has to be read in conjunction with the rules for the provision of information, which are set out in clause 23. As a preface to responding in detail to the amendments, I must say that we are not talking about wholesale access to the database. People need to balance things. Perhaps the hon. and learned Member for Harborough will be so wise as to balance his somewhat overstated remarks and say that this is not about wholesale access for Her Majesty’s Revenue and Customs, but about proportionate access to the basic identity details that are held on the register.

As Members will know, it is not as if the customs are operating in a vacuum at the moment. They have access to information relating to who might be currently under investigation. It is not as if we are talking about extending the arms or tentacles of government into entirely new areas and interfering into people’s private lives. The provision simply allows the benefits that the register provides to be extended to Her Majesty’s Revenue and Customs in the carrying out of its work. It is not horrific, as the hon. and learned Member for Harborough suggested. That was just one example of his overstatement.

Edward Garnier (Conservative, Harborough)

Perhaps the Under-Secretary could help me. What does subsection (4)(f) mean? It states:

“for other purposes specified by order made by the Secretary of State.”

What “other purposes” do the Government have in mind?

Andy Burnham (Labour/Co-operative, Leigh)

I shall come on to that. In responding to the amendments so far, I have sought to get some balance back into the argument. The hon. and learned Gentleman asked whether it was right and justified for our constituents to be subject to far-reaching legislation such as this. I take it that his constituents are taxpayers, like mine are. They all have an interest in Her Majesty’s Revenue and Customs doing its work effectively and in ensuring that it can bear down on cases of fraud and tax evasion. If he has a problem with that, he needs to say so. If his objection is to the efficient running of Government agencies, that is not acceptable as a criticism of the Bill.

Edward Garnier (Conservative, Harborough)

I do not want to keep jumping up and down, because listening to me correcting the Under-Secretary all the time would be tedious for everyone, but I should make the following point. We all have a general desire to prevent and detect crime, be it crime against the Revenue or the Treasury, or against the general criminal law. We do not have a joined-up approach across this Committee Room about how to give powers to the Secretary of State to run the identity register and the identity card system. That is what we are discussing. The Government would be advancing a false argument in suggesting that the Opposition do not approve of the detection and prevention of crime—of course we do. However, we are concerned about how the Government are giving themselves powers to do things that we cannot yet define.

Andy Burnham (Labour/Co-operative, Leigh)

I shall come on to address the amendments in detail. I was simply pointing out that from the tenor of some of the hon. and learned Gentleman’s remarks, it seems that he has little trust in any arm of the Government. We heard last week about rogue elements in the security services. I say to him that the powers that we are discussing are balanced. Her Majesty’s Revenue and Customs is already carrying out investigations; the provisions would simply extend the benefits of the register to its work.

The hon. Member for Orkney and Shetland was right to say that the amendments are not entirely the same. His amendment would restrict the provision of information to

“where it is necessary in the interests of national security or the prevention or detection of serious crime”.

Amendments Nos. 65 to 69 would restrict such provision further—to when it was necessary in the interests of national security or the detection of crime.

Her Majesty’s Revenue and Customs is the new department responsible for the business of the former Inland Revenue and Customs and Excise. Its law enforcement responsibilities are often undertaken jointly with the police, but it is also directly involved in the prevention and detection of crime. The customs side of the organisation is responsible for the investigation and prosecution of crime, including major cases of drug trafficking, and the Revenue side also has an important role in law enforcement.

The hon. Member for Newark made a fair point in asking why the issue was not simplified and why the focus on those roles was not absolutely clear. Clause 19(4) is necessarily detailed so as to ensure that all the relevant Revenue and Customs functions are covered and that information from the national identity register can be provided to the organisation. Such information could, for example, concern the identity of a suspect and assist with the law enforcement functions of the Revenue and Customs.

The hon. Gentleman will know that the Revenue also deals with compliance, but the amendments would make it very difficult for it to use the national identity register to any real effect. Information from the register will increase the Revenue’s ability to direct its compliance work effectively. Without the possibility of making identity checks against the register, it would risk making payments to individuals who had made fraudulent claims. I do not believe that he would want that, and neither would we.

Recently, there have been cases of people claiming tax credits fraudulently, and that is an example of how identity fraud is becoming more and more common. Members on both sides of the House have an interest in ensuring that people who receive payments are entitled to them and are who they say they are. If the Revenue is to be able to do that, it is obviously important that it should have access to the register.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The distinction that the Under-Secretary draws between the compliance functions—as he sees it, these would be impaired by the amendments—and the other functions is not real. The fraudulent claiming of tax credits and everything else would surely be covered by the

“prevention or detection of serious crime”.

Andy Burnham (Labour/Co-operative, Leigh)

The functions of the merged agency apply widely. It provides payments to individuals through the tax credit system. The argument will be about whether that would extend to serious crime. I do not believe that it would in some cases. The organisation has wide-ranging responsibilities for enforcement—the collection of tax—and for providing benefits through the tax credit system. That is why the clause is drawn so widely.

Furthermore, the boundary between the civil and criminal work of the Revenue and Customs is necessarily complex. The disruption of Revenue fraud to prevent significant tax loss is a key element of the strategy for combating commercial fraud, such as that involving VAT and duty on tobacco, oils and alcohol. Although it may be possible to arrest and prosecute the perpetrators, part of the response in tackling serious tax fraud may be the use of civil procedures to frustrate the criminals and thereby prevent loss of revenue. For example, in missing trader VAT fraud, fraudulent VAT repayment claims can, in some cases, amount to millions of pounds. In such cases, Revenue and Customs may use civil procedures to recover the loss of tax.

Those civil procedures, which can be more effective than criminal proceedings in recovering funds, may include restraint orders where a debt has been established, the appointment of an insolvency practitioner and civil conspiracy proceedings. What links those civil disruption activities to criminal investigations is that both require timely and accurate intelligence for effective action to be taken. For those reasons, we want to be in a position to provide Revenue and Customs with access to information held on the national identity register that could help its investigations, whether or not it leads to a criminal prosecution.

For those reasons, paragraphs (a) to (e) of subsection (4) reflect the wide range of responsibilities held and work done by Her Majesty’s Revenue and Customs. The order-making provision in paragraph (f), which would be removed by the amendment tabled by hon. Member for Orkney and Shetland, as well as by the amendments tabled by the hon. and learned Member for Harborough, allows the circumstances referred to in subsection (4) to be extended in line with any additional work that might be allocated in the future to what is still a new department. We do not believe that it would right to have to do that through primary legislation.

Amendment No. 65 would allow the information to be provided only for purposes connected with the detection of crime. Under amendment No. 181, the provision of information is limited to purposes connected with serious crime. We think that those amendments would seriously constrain the legitimate use of the national identity register and the ID cards scheme. Her Majesty’s Revenue and Customs is working in an increasingly intelligence-led arena, in partnership with some of the other agencies that we discussed in relation to the earlier provisions in the clause. It is right that its role in relation to crime is not just reactive, as my hon. Friend the Member for Broxtowe said. The phrase “prevention or detection of crime” is commonplace in legislation. It is not right to suggest that Revenue and Customs must wait until a crime has been committed before it can be provided with information from the register to help to identify a suspect.

There are also good reasons why we should not limit the provision of the information to cases involving serious crime. As I have said to the hon. Member for Orkney and Shetland, Revenue and Customs deals with child benefit and tax credit fraud. An individual instance of those types of fraud may not appear to be serious crime, but it could be part of a serious organised fraud and, cumulatively, cases in which false identities are used could lead to a major loss of funds.

As I reassured the Committee at the outset, we are not talking about wholesale access to the register. Under existing law, Revenue and Customs can already access information held on individuals in the course of its investigations. We are talking about providing basic identity details. I do not believe that that is horrific or that my constituents would object to Revenue and Customs being given proportionate access to the national identity register. Coupled with that, rules will be laid down in clause 23 about how requests will be handled. The Information Commissioner will provide further oversight. A further safeguard is that the provision of information must be necessary in the public interest, as defined in clause 1(4).

In the light of those assurances, the amendments are not necessary or desirable. They would restrict and limit the work of Her Majesty’s Revenue and Customs. I urge the hon. Member for Orkney and Shetland to seek leave to withdraw his amendment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

This has been an interesting teasing out of the issues. I shall take the Under-Secretary’s comments away with me when the House rises at the end of the week and consider them further. It seems that there are a number of internal contradictions in his argument. It also seems that, over the years, the Government, who seek to allow Revenue and Customs to operate in this way and to rely on civil penalties rather criminal prosecutions, allowed a certain laziness to creep into the way in which Customs and Excise, as it previously was, performed its duties. That became apparent to me in the course of a Select Committee investigation in relation to the imposition of strip stamps on spirits, of which I was a part. Nothing that the Under-Secretary said has persuaded me that that situation will change. By insisting on the wide definition in the clause, the Government somewhat undermine the purposes on which they themselves have placed so much stress. I do not know how one can reasonably construe clause 19 in a way that is consistent with the basic provisions that are clearly outlined in clause 1.

Andy Burnham (Labour/Co-operative, Leigh)

Clause 1(4)(e) states that one of the purposes is

“securing the efficient and effective provision of public services.”

I hope that the hon. Gentleman would accept that Revenue and Customs is engaged in precisely that activity.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I do not necessarily accept that. The range of issues for which Revenue and Customs would require access—what the Under-Secretary would call compliance issues—would be adequately covered by the first two paragraphs of clause 1(4):

“(a)in the interests of national security;

(b)for the purposes of the prevention or detection of crime”,

which is what we are dealing with. I do not believe that the

“efficient and effective provision of public services”

is part of the work of an enforcement agency, which is, in essence, what Revenue and Customs is, as distinct from a service provision agency such as the health service or the Department for Work and Pensions.

Andy Burnham (Labour/Co-operative, Leigh)

I fully accept that Revenue and Customs may not be a popular organisation and that people may not want it to be able to do its work with ease and convenience, but the fact is that we all depend on the tax take for the health service and other organisations to work. Revenue and Customs carries out a crucial public service, and it should be aided and assisted in doing so.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Under-Secretary does not do himself or the Committee any service by trying to misrepresent what we are discussing. Nobody is saying that Revenue and Customs should not be allowed to carry out its functions properly—that is certainly not what my amendment is about. My amendment seeks to achieve consistency in how access is allowed. Is he saying that Revenue and Customs should be allowed access to any information that it wants in any circumstances? That seems to be what he is saying now, although it contradicts what he said two or three minutes ago about proportionate access. I shall not misrepresent his position, and he should not try to misrepresent mine.

I do not intend to press the amendment to a Division. We are exploring for Revenue and Customs the same issue that we explored for other agencies in the debate on the previous string of amendments. I do not intend to detain the Committee further, but perhaps the issue would benefit from further scrutiny at a later stage. Accordingly, I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 70, in clause 19, page 17, line 45, leave out subsection (5).

In general terms, the arguments for this amendment, which seeks to delete subsection (5), were rehearsed in the last debate. The point that I wanted to make by introducing the amendment is that this is yet another example of desperate vagueness in a measure that will have a fundamental effect on the lives of our fellow citizens and on the relationship between the state and individuals.

Let us take one or two examples. Subsection (5) states:

“The provision of information not falling within paragraph 9 of Schedule 1 is authorised by this section where the information is provided—

(a)to a prescribed government department, or

(b)to a prescribed Northern Ireland department”—

we do not yet know which Department in either case—

“for purposes”—

unspecified—

“connected with the carrying out of any prescribed functions”—

unspecified—

“of that department or of a Minister in charge of it.”

We know that the paragraph 9 information is the audit trail on the register, so the information under discussion does not fall within that audit trail. It strikes me that this is another example of Parliament being asked to give to the Government powers to do things that the Government cannot specify. It is a regrettable step.

Andy Burnham (Labour/Co-operative, Leigh)

We have covered some of this ground before, so I do not intend to detain the Committee too long. I understand where the hon. and learned Gentleman is coming from, and this debate is similar to the one that we have just had. It probably comes down to a basic difference of opinion about what we think the national identity register will be useful for. It will enable the Government and public bodies to function more effectively in everybody’s interests.

Departments hold a range of personal identification information in different forms and on different databases. It is not as if that information is out of their reach; it is just that it may be held in different places and with discrepancies. The provision allows regulations to be made that would permit a Department, including a Northern Ireland Department, to be provided with information for the purposes specified.

I shall give the hon. and learned Gentleman some examples to reassure him that the provision is not desperately vague but a sensible measure that will help public administration. A provision could be made for the Department for Work and Pensions to receive information in connection with its fraud investigations. The provision might be used is to provide the Department for Constitutional Affairs with information to ensure that fines are issued to the correct person, or to provide information about addresses that might be helpful in tracking down individuals who have not paid fines. That is a real issue, and we all have an interest in seeing it addressed. If the national identity register can assist the courts in that process, it is sensible to introduce it.

Edward Garnier (Conservative, Harborough)

I am grateful to the Under-Secretary for giving way and for providing me with those examples. Perhaps he would care to consider clause 1 and where those examples fit in with the statutory purposes.

Andy Burnham (Labour/Co-operative, Leigh)

The matter is quite straightforward, and I urge the hon. and learned Gentleman to read the Bill before making such interventions. He is the lawyer, not me. [Interruption.] He has asked me a question, and I am about to give him the answer. If he does not like it, he should not ask the question. I repeat that clause 1(4)(e) says

“for the purposes of securing the efficient and effective provision of public services.”

The examples fit in there. Perhaps if he had read the Bill before intervening, he would not have done so.

A further example of how the measure might be used is to provide information to the Department of Health when a patient who is admitted to hospital cannot identify themselves. The provision of the information would allow the individual to be verified, and so aid the retrieval of medical records, although of course medical records would not be held on the register.

Subsection (5) does not authorise the provision of information within paragraph 9 of schedule 1. Members of the Committee can be assured of that. Any regulations would be subject to the negative procedure, and it is our intention that, as with all other cases where information is provided without consent, the arrangements would be subject to authorisation procedures and independent oversight. The procedures would be covered by the rules that we shall discuss in relation to clause 23. Further scrutiny would be provided by the commissioner, whose powers we will discuss in relation to clause 24.

Tobias Ellwood (Conservative, Bournemouth East)

There is concern about the many areas of vagueness. I appreciate that the Under-Secretary has given some good examples of how in these quite open clauses and subsections the measure might fit. He has given three examples: the Department for Work and Pensions, the Department for Constitutional Affairs and the national health service. Such bodies are not listed. There is huge concern among Opposition Members that many different questions and issues will be raised about the ways in which not only the register but the ID cards can be used, because of the general remit of clause 1(4)(e), which the Under-Secretary has just cited. Things can be justified by being said to come under the label of being for

“the efficient and effective provision of public services.”

If we are not firm about exactly how the register can be used, there is a worry in respect of a Government or Department—not necessarily this Government or any Department in particular. It could be argued in court that things are not clear. A private company, which we have now established could have access or permission with regard to outsourcing services, could use that in a way that is, if not clandestine, then not intended. That could be done because matters are not clearly stipulated in the Bill.

Andy Burnham (Labour/Co-operative, Leigh)

I take the hon. Gentleman’s point on board. However, the reference in paragraph (e) to

“the efficient and effective provision of public services”

is clear. I expect that we will discuss the term “public authority” in relation to an upcoming clause. Because that term is defined, it is clear who these measures will relate to. Therefore, an assurance can be given that the range of organisations that can access information under this measure is limited.

Let me explain to all Opposition Members what makes this clause important. We have said all along that the provision of better public services is a crucial part of the reason for introducing this legislation. Departments and public bodies seek to identify people every day; that is part of their core business. That is true of the health service, the Department for Work and Pensions, the Department for Transport in respect of driving licences, the Home Office and the police in respect of immigration, firearms licences and crime. It is true of all Departments.

Our systems of public administration have developed in such a way that each body runs its own system of identity verification. They have their own databases and procedures to establish that people are who they say they are. It is important to emphasise that the Bill changes that in a way that is right and that will lead to the better administration of our public services. If we create a database that links biometric information to personal details, we will create a much higher standard of identity verification than we have had under the old system of a passport photograph or a signature. It is right that other Departments can use that database once it is created, so that they can go to one place to ensure that people are who they say they are. That is a sensible way in which to use the database, and it will bring benefits across the public sector.

Ben Wallace (Conservative, Lancaster and Wyre)

What safeguards can the Under-Secretary give? Clause 19(5)(b) refers to

“a prescribed Northern Ireland department”.

Can he explain what that term means? The bodies mentioned earlier in the clause are law enforcement agencies, and the employees are subject to a degree of vetting. What about some of the Northern Ireland agencies? Recently, with regard to Sinn Fein, individuals have been expelled from Stormont for looking through certain people’s records in a “Northern Ireland department”. I ask for an assurance about that both for me and, perhaps, for others who take an interest in Northern Ireland matters.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman raises a legitimate point. I emphasise again that we owe it to all the various public bodies that run public services and that are responsible for the security of the people of our country to make their job as easy as possible. We should enable them to use whatever technology is available so that their processes can be made more secure. However, he makes a fair point. The scope of the Bill is restricted. He will see that the subsection mentions a “prescribed Northern Ireland department”. Obviously, the prescribed Department would be laid out in regulations flowing from the Bill. That is the right way to implement the measure. Those Departments administer social security and are responsible for driving licences. Those are the same functions to which I referred when responding to the hon. Member for Bournemouth, East (Mr. Ellwood). We want the functions that public bodies in England, Wales and Scotland benefit from to be extended to Northern Ireland.

There is no difference in the argument. It is simply about allowing the public sector per se to benefit from and have access to the highest standard of identity verification that we can provide. Doing that will avoid the replication involved in each Department running its own system. It will also give them confidence that they are verifying somebody against the register and need not fear that fraud is being carried out.

With those reassurances, I hope that I can persuade the hon. and learned Member for Harborough to withdraw the amendment.

There are further safeguards: the public interest test in clause 1(4) and the oversight of the commissioner. The subsection is an important one that goes to the heart of the Bill. It goes to the heart of one of the main reasons that we believe that the national identity register is in the interests of the country and of the good running of our public services. I ask the hon. and learned Gentleman to withdraw the amendment.

Ben Wallace (Conservative, Lancaster and Wyre)

I did not intend to speak, but I want to press the Government on the point that I raised with the Under-Secretary. If we are widening the group of people who will have access to the register or the functions of the Department, it is important that the Government show that they have given some thought to the individual operators that may use that system. There is vetting at different levels in the law enforcement agencies, the security services and areas such as the fraud prevention part of the Treasury. There is an element of trust in that.

The fact that only by questioning the Minister was it raised that, at some time, a regulation will expand on the prescribed measures does not give me confidence that the Government have given much thought to the other half. It is not dramatic enough to talk of rogue elements, but if we are starting to allow more people to sit at a computer and to look at a register, there must be an agreement from the Government that there will be an element of vetting. That will protect us as individuals and ensure that a person will not be dragged off the street, or moved from one Department to another and then get access to information.

I used the example of Northern Ireland because I am on a number of Sinn Fein websites and have been a prescribed target of some of those organisations. There is a considerable case history of leaks from Departments, not intentionally, but by individuals working in bodies as innocent as the Department of the Environment in Northern Ireland, or the Driver and Vehicle Licensing Agency, passing on details about individuals.

Andy Burnham (Labour/Co-operative, Leigh)

I take the point that the hon. Gentleman is making, but it seems that opposition has done funny things to the Conservative party. It now appears not to trust the organisations that it would have trusted to uphold their statutory functions. Does he not accept that those organisations will hold data? They do hold data. It is part of their job. They must hold data. It is in everyone’s interests that those data are correct. That is simply what the debate is about.

Ben Wallace (Conservative, Lancaster and Wyre)

First, perhaps the Under-Secretary does not recognise that there are different classifications in Northern Ireland that prohibit certain officials from seeing certain documentation. I ask him to recognise that point. Secondly, the difference is that, under previous Governments and—currently—under this Government, the leak was limited to the Department that the individual worked in. They could get access only to a DVLA record or to a council tax record. Those records were not brought together under one umbrella, called a central database, which gives much more up-to-date and wider basic information. The point is that there will be a central point of access that goes beyond departmental limits. It is on that point that I ask the Under-Secretary for protection, especially as he is so keen to allow a Department to have wider access.

I am not asking the Under-Secretary not to do what he plans to do; I am asking him to come forward with more details on how exactly the Government are ensuring that operators of the system are trusted individuals, or that those operators have some control so that the individual is protected. That is all I ask, but it seems that the Under-Secretary does not want to listen even to that. The reality is that there have been such problems historically. We are now putting everything in one basket, and more people are to be allowed access. I ask him to keep that concern at the back of his mind when he produces an “Oh well, it will appear later in regulations.” This is yet another example of the Christmas tree. We are talking about individuals’ safety, and it is important that he gives due weight to the issue.

Edward Garnier (Conservative, Harborough)

I agree with my hon. Friend, and I would ask the Under-Secretary to keep that concern not at the back of his mind, but at the front of it, during the whole of our deliberations and during the later drafting of the statutory instruments containing the regulatory powers.

This is another debate about access and function creep. The Under-Secretary said that the phrase “public services” in clause 1(4)(e) is designed to help me understand the arguments, but “public services” is an undefined item in that paragraph. Why do we need a Minister to explain it under clause 19? We should have had those details before the Bill was debated, and in the draft Bill. We are creating not just a database, but a leviathan that will demand ever more from the citizen for the benefit of the administration of the state. I am not convinced that those demands are counter-balanced or adequately defined by the benefit to the citizen of giving up information to the register.

I will not press for a Division on the amendment, but I want to register yet again my dissatisfaction with the way in which the Government respond to our amendments. The Bill has been inadequately prepared and thought through, and despite the fact that we went around the houses with this Bill in the last Parliament, the Government seem to have learned precisely nothing from the experience and from the views of others since then. We will certainly get back to this issue on another occasion, but at this stage I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

Before we proceed to the next amendment, may I remind hon. Members not to whisper with colleagues sitting next to them? I am beginning to hear whispers, conversation and comment from the Chair. As hon. Members will know, that is out of order.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 71, in clause 19, page 18, line 5, leave out subsection (6).

This will be yet another short debate about the clause. The amendment would delete subsection (6). This is perhaps an even more stark example of the reason for my making the complaint that I made in the previous debate. Under subsection (6), we are talking not about Departments, but about designated documents authorities. Although the expression “designated documents authorities” is defined in the general interpretation clause towards the end of the Bill, those of us here today have absolutely no idea—indeed, neither does anyone else—what a designated documents authority would actually be. None the less, we see that the provision of information to one of these unspecified authorities is authorised by the clause

“where the information is provided for purposes connected with the exercise or performance by the authority of ... any of its powers or duties by virtue of this Act”,

or, amusingly, under subsection (6)(b),

“any of its other powers or duties in relation to the issue or”—

and here is my favourite word—

“modification of designated documents.”

I shall not repeat myself, but this is an increasingly bad measure, and nothing that the Government have said so far persuades me that my complaints are anything other than entirely justified. I look forward to hearing the Under-Secretary have another go at explaining why these unspecified powers are justified.

Andy Burnham (Labour/Co-operative, Leigh)

I shall respond directly to the amendment. I hope that we can deal with it briefly because it relates to the debate that we have just had.

If the hon. and learned Gentleman wants me to have another go, I shall say it again: if he does not think this is good enough, I am not sure what else I can do. Surely all of us want agencies carrying out public functions to identify people to the highest standard possible. Carrying out that identification in one place through one process is likely to lead to higher standards of identity verification and to the issuing of fewer fraudulent documents. That has to be in the public interest, and it is one of the reasons for introducing the Bill.

The Government have made it clear that when ID cards begin to be issued in 2008, they will be issued by a new executive agency incorporating the functions of the UK Passport Service and working closely in conjunction with the immigration and nationality directorate of the Home Office in respect of foreign nationals. We believe that there are good reasons for including these provisions in the Bill. It is possible that we may wish in future to designate a different category of document that is not issued by the new agency. This could include, for example, a driving licence that is issued by the DVLA or by Driver and Vehicle Licensing Northern Ireland, both of which are separate agencies and are not the responsibility of the Home Secretary.

As things stand, the Government have only stated their intention to designate the passport, but it would make sense to consider driving licences in that context. The power under subsection (6) would enable us to do that. It would ensure that the agency was able to access the same information provided to it as would be available to the agency issuing ID cards initially. It would also mean that the same information could be provided to any other designated documents authority so that all ID cards would be issued in a uniform manner. As has been mentioned before, that could include bodies such as the Criminal Records Bureau, with which we all share an interest in performing identity checks to the very highest standard.

Although I understand the reasons behind the hon. and learned Gentleman’s amendment, I hope that he will accept the position that I have outlined. He will know that the linkage of ID cards to designated documents is an important part of the rationale advanced in the Bill. It will enable all of us to have more confidence in those documents once the scheme is fully up and running. It is a sensible measure that will allow organisations to share all the information involved in an application to register with the national identity register.

I hope that the hon. and learned Gentleman will accept that the designation of documents is an important process underpinning the Bill, and for that reason, I ask him to seek leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I would have a lot more confidence in what the Under-Secretary said if I thought that he understood the profound nature of our concerns. He uses expressions such as “this could include”. In my view, that shows a terrifying lack of certainty, and I do not think that the Government have quite addressed our concerns. He has certainly not addressed—perhaps he could not do so—the point made by my hon. Friend the Member for Lancaster and Wyre (Mr. Wallace) about the protection of personal information from access by unauthorised people even within Government, let alone from outside elements.

I continue to register my deep-felt concern that the Bill is leading us down a path that we will regret unless the Government tighten up their understanding, and therefore ours, of what they intend. In the meantime, although I promise to return to this point on another occasion, I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

In the light of my objections, which were unanswered, I rise simply to invite the Committee to divide on whether clause 19 stand part of the Bill.

Clause 20 - Further uses connected with the prevention and detection of crime

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 72, in clause 20, page 18, line 45, leave out subsection (3).

The amendment seeks to delete subsection (3). The clause title reflects, no doubt, a worthy and uncontroversial desire—preventing and detecting crime—but we are entitled to greater scrutiny of the clause than a simple nod-through would provide.

Subsection (1) refers to “section 23”, and states:

“The Secretary of State may, without the individual’s consent, provide a person with information recorded in an individual’s entry in the Register if—

(a)the provision of the information is authorised by this section; and

(b)there is compliance with any requirements imposed by or under section 23 in relation to the provision of the information.”

I will not read clause 23 out, but I defy anybody who reads it to have a better idea of what the Government intend at the end of the read-though than they had at the start.

Clause 20 goes on to deal with the provision of information that does not fall within the audit trail under paragraph 9 of schedule 1. It then states:

“Section 18 of the Anti-terrorism, Crime and Security Act 2001, (restriction on disclosure of information for overseas purposes) shall have effect”.

I want to hear what the Government are doing in that regard.

May I underline again my general concerns about the nature of the Bill as it is increasingly revealed? Subsection (4) makes it clear that the provision of information falling within the audit trail of paragraph 9 of schedule 1

“is authorised by this section if it is provided—

(a)to a person to whom information may be provided by virtue of any of subsections (3) to (5) of section 19 or is made as mentioned in subsection (2) of this section”.

Subsection (4)(b), which is the little catch-all, states:

“for purposes connected with the prevention or detection of serious crime.”

These are not tedious debating society points. We are affecting the relationship between the state and the individual. I urge the Government to apply their mind with greater vigour to the access and function creep that the subsection deals with and which my amendment invites them to address.

Andy Burnham (Labour/Co-operative, Leigh)

I assure the hon. and learned Gentleman that I consider none of his amendments, or the comments he supplements them with, debating points. In this case, he is dealing with a serious point, but his concern would more properly be directed to the Anti-terrorism, Crime and Security Act 2001. Clause 20 simply aligns the Bill with measures in that Act on the provision of information without consent.

Section 17 was included in the Act to ensure that, for the purposes of a criminal investigation or criminal proceedings, public authorities can disclose information that is subject to statutory restriction on disclosure. Under section 17(2), 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.

Clause 20 will ensure that information from the register can be provided without consent

“for any of the purposes specified in section 17(2)(a) to (d) of the Anti-Terrorism, Crime and Security Act 2001”,

provided that there is compliance with the rules set out in clause 23, which we will come to later.

Those rules lay down a clear framework in which information can be given. This takes us back to other points. For instance, the rules lay down the rank at which an official in an organisation can be supplied with information and the use to which information can be put. I assure the hon. and learned Gentleman that the assurance he wants, although it may be buried, certainly is in clause 23, which provides some safeguards that he seeks.

Subsection (3), which would be deleted by the hon. and learned Gentleman’s amendment, is one of the safeguards, so I am surprised in some ways that he has directed his attention to it. It will allow the Secretary of State to give a direction prohibiting the provision of information for use in specified overseas proceedings. Again, that mirrors the corresponding power in section 18 of the 2001 Act. The amendment would remove that power.

Under section 18, the Secretary of State might prohibit information from being provided for overseas purposes if he considers it more appropriate for any jurisdictional matter or investigation to be exercised or carried out by a court of the UK or a third country. If the Bill allows for the provision of information in the circumstances set out, it follows that the gloss put on section 17 by section 18 of the 2001 Act should be reflected in the Bill.

The clause will simply extend to the national identity register the powers that already exist in respect of other data sources in the UK. It is right that the Secretary of State should be able to specify overseas proceedings for which he considers the disclosure of information under clause 20 not—I stress “not”—appropriate. That safeguard and restriction reserves to the Home Secretary the right not to comply fully when a request for information is made.

I hope that the hon. and learned Gentleman accepts that the clause deals with quite a narrow point and that it brings the Bill fully in line with legislation already passed by the House. There are safeguards in place, and I urge him to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

The Under-Secretary said that a framework is set out in clause 23, and that it is clear. I accept that, in his eyes, the vagueness of clause 23 provides a framework. It certainly is not clear, but we will discuss that in due course. I am not in the least satisfied with how this part of the Bill is constructed and we may return to the matter, but I beg to ask leave to withdraw the amendment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Subsection (4)(b) deals with the authorisation of provision of information if it is provided

“for purposes connected with the prevention or detection of serious crime.”

I am curious to know why the word “serious” is included when it is not included in any other definition in the Bill.

Andy Burnham (Labour/Co-operative, Leigh)

I shall consider that point. The clause deals with the relationship between the Bill and the Anti-terrorism, Crime and Security Act 2001, which, by definition, deals with serious crime. I think that is the reason for the drafting, but if it is not I will write to the hon. Gentleman. The clause relates to a measure that deals specifically with serious crime, which is why the provision is drafted in that way. However, I assure him that I will come back to him on the point.

The audit trail of paragraph 9 information may be sensitive and we have ensured throughout the Bill that there is a higher test for access to such information. Only when serious crime is involved will police forces be able to access that information, which is probably why the provision is drafted in that way. If I need to clarify any of that in writing, I shall do so.

Clause 21 - Use for correcting inaccurate or incomplete information

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 73, in clause 21, page 19, line 23, at end insert—

‘(2A)Where subsection (2) applies, the Secretary of State shall notify the individual in writing that he has taken action under that subsection within 30 days of doing so.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 183, in clause 23, page 20, line 26, at end insert

‘and,

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

Edward Garnier (Conservative, Harborough)

Amendment No. 183 would have a similar effect on clause 23, which we touched on briefly a moment ago, to that which amendment No. 73 would have on this clause. I want to ensure that there is no unnecessary, uncalled for or unjustified growth in secret government.

The clause is entitled “Use for correcting inaccurate or incomplete information” and it will allow the Secretary of State to tell someone who is not the subject of the information that something recorded about an individual is inaccurate or incomplete, and allow him to tell that unspecified third party that the information on the register is inaccurate or incomplete without letting the subject of the information know either that the information is inaccurate or incomplete or that he has told someone it is inaccurate or incomplete.

Unless the Government can persuade us otherwise, the Secretary of State should notify the subject of the information in writing that he has taken action under the provision within 30 days of doing so. There is no magic about the figure of 30 days, and if the Government want to specify another period I shall be happy to go along with it if it is reasonable.

I have a philosophical objection to things going on about me out of my sight unless there is a good and justifiable public policy reason for them to do so. I understand that there will be occasions when the register might say, for example, that I am a suspected drug dealer, people trafficker or money launderer. The third party—let us assume that it is the police, and perhaps the chief constable of a particular area—may wish to gain access to the information about me on the register, on which those data have been recorded.

I appreciate that, on other occasions, one of the Ministers has said that opinion evidence or opinion shall not be recorded in the register. However, I drew their attention to the definition of personal information in the Data Protection Act 1998, under which opinion evidence or opinion seem to be recordable.

I appreciate also that there shall be occasions when it might be in the interest of the detection or the prevention of crime for that third party, if it is a police authority or officer, to know that the information designating me as a suspected people trafficker or a money or drug criminal is inaccurate. It might be in my interests for that to be corrected. I also have a right to know the information about me on the register that is wrong.

This short debate has briefly exposed the dangers inherent in the ID register system as well as the use that can be made of it by the state either for or against my interests and, more particularly, without my knowledge. The more we computerise and dehumanise government, the more important it is for the individual citizen to be treated as a human being rather than as a digit and as a collection of inanimate information.

The Bill is all about giving the Secretary of State undefined powers to do undefined things, nominally in the interests of the state and in the interests of ourselves as a collective of individuals. However, we are becoming pieces of information to be processed, rather than human beings. If we are to move down this road for reasons of administrative and governmental efficiency, it is important that we do not lose sight of the fact that the Government exist to benefit the individual and to benefit society, which is a collection of human beings, not just numbers.

I urge the Government when addressing amendment No. 73 and amendment No. 183, which relates to clause 23, to explain how they can justify the movement of information about me, whether accurate or inaccurate, in circumstances in which I am wholly ignorant of that traffic.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have added my name to amendment No. 73. Amendment No. 183, which stands in my name, relates to clause 23, but it deals with much the same point.

Returning to an earlier debate about the ownership of the information and the basis on which it is provided, I share philosophical difficulties of the hon. and learned Member for Harborough and it remains my strong view that the information should remain in the ownership of the individual to whom it relates. That being the case, it makes sense that when the information has been wrongly recorded or corrected, as outlined in the clause, the person to whom the information relates should be made aware of that fact. The one obvious rider relates to national security and the prevention and the detection of crime. With that, I shall be interested to hear what the Under-Secretary has to say.

Andy Burnham (Labour/Co-operative, Leigh)

Amendment No. 73 would make it a requirement to notify an individual in writing within 30 days if information had been requested about him under clause 21 by another person. The amendment tabled by the hon. Member for Orkney and Shetland would expand the power under clause 23 to make regulations, so that they could include provision about notifying an individual that information had been provided without his consent under clauses 19 to 22.

I want to make the important point that we have constantly gone over such ground during our proceedings and we are now having to do so yet again. However, it is crucial that that happens because, although we have discussed these matters, the same myths are being propagated about what the Bill will and will not do.

For the avoidance of doubt, I say to the hon. and learned Member for Harborough that, if he were a suspected criminal or drug dealer, such information could not be held on the register because it would not be a registrable fact. He need have no fear that such a position is possible. As he knows, the registrable facts are set out clearly under schedule 1. It is for the organisation requesting the information to examine its own records. Obviously, other organisations could hold information that he might be a suspected drug dealer, but not the national identity register. It is an identity verification system and it will not hold all types of information about criminal or medical records.

We have been over such matters before and we must do so again because we cannot allow such arguments to stand unchallenged. It is important to take such action because it affects the whole basis on which the amendments were introduced. There is no fear that such information can be held, so a lot of the arguments fall because of that statement.

It is important to note in respect of both amendments that, to comply with the first data protection principle, which requires that the information be processed fairly, the Secretary of State will have to give notification to data subjects of, among other things, the purposes for which data will be processed. In practice, in respect of the national identity register, it will probably be the case that on the application form an explanation will be given of the power to carry out cross-checks under clause 21 and the power to provide information without consent under clauses 19, 20 and 22. In all likelihood, such matters will be explained on the application form for people registering with the scheme.

However, unlike the two amendments, the Data Protection Act does not oblige the Secretary of State to give notification of each occasion on which the powers are used. There are good reasons why we consider it not appropriate to place the Secretary of State under such an obligation. As for amendment No. 183, it is obvious that there will be many circumstances in which it would be completely inappropriate to inform a data subject that information about him had been provided. Such notifications could, for example, undermine criminal investigations, matters of national security and Customs-related investigations.

The hon. Member for Orkney and Shetland will know that one reason for introducing the Bill is to weed out and close down people’s ability to acquire documents fraudulently in false names. If people were notified of discrepancies, they would also be notified of the fact that an investigation was under way into why they had applied for documents in two different names. There might be good reasons for not having a requirement in the Bill whereby each time a cross-check is undertaken, the individual is notified.

On amendment No. 73, clause 21 was drafted specifically to allow the Secretary of State to notify people or organisations that provide information as part of the identify checking process if subsequent inaccuracies or omissions are discovered in the information they supplied. That will enable us, when an organisation has provided information that we believe is inaccurate or incomplete, to alert that organisation to that fact.

As a result of that power, the administrators of the national identity register will be able to help to ensure that data held in other places by Departments and public bodies are accurate. In turn, that will help us in a general fight against identity fraud. It will ensure that those who try to avoid identification by using slightly different details will find it harder to do so.

Members of the Committee may have heard about the publication yesterday of a UK Passport Service report on its personal identity project. It covers the processes whereby the UK Passport Service is increasingly cross-referencing data received with those held by other Departments. That has proved to be successful and, as hon. Members can see from the report, the project is to be extended. The measure simply gives the same powers in relation to the national identity register as exist with regard to the UK Passport Service.

In most cases, when processing an application form, the Secretary of State is likely to have the most recent and accurate information about an individual. Where a discrepancy arises between that information and the information held on another database, that other database may well be out of date. It will then be a matter for the organisation holding those data to consider amending its records or make further inquiries of the individual. At that point, there is a strong likelihood that the organisation concerned will contact the individual to alert him or her that a discrepancy has arisen and to ask for clarification. In most cases, people will experience the effect that the amendment seeks to achieve: there will be notification when such a check has been carried out.

It is possible that the Secretary of State may have reason to believe that the information on the application form is inaccurate and that the data held by other organisations are correct. In those circumstances, as the UK Passport Service is already doing, it is right that the Secretary of State has the power to try to clear up the discrepancy. It is open to the Secretary of State to contact the individual should he wish to do so.

A legal obligation to notify the data subject every time a cross-check is carried out, even where no discrepancy is revealed—that is an important point—would involve a disproportionate investment of time and resources. It would be bureaucratic and unnecessary. As I have outlined, in practice, where discrepancies arise, the data subject is likely to be contacted by one or other data controller. Furthermore, the power is limited to the validation of information that is or could be held on the register. There is no scope for it to be used in a way that would be surprising or that would involve anything other than the usual identity information.

I give that cast-iron assurance to the hon. and learned Member for Harborough and, for those reasons, ask him to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

Let me put the Under-Secretary out of his misery: I will ask the Committee’s leave to withdraw the amendment, but I want him and the Government to understand that in a democracy public trust in the institutions of government is vital. I am afraid that public trust in the Government—I do not mean this Government; I mean Governments generally—is declining as we become more and more a computerised society and less and less a society in which people interact with each other as individuals.

I am sure that we have all received any number of complaints about the operations of the Child Support Agency. That is a classic example of a situation in which the individual feels wholly disempowered as a consequence of having to deal, as a number, with a computer, which simply will not sympathise with his personal problems.

I know precisely what schedule 1 of the Bill says, but I am not so naive as to believe that a massive exchange of information is not already taking place between Departments, even before the Bill becomes an Act. Nor am I so naive as to think that, just because we have the Bill as drafted, all sorts of things will not go on that are not specified in the Bill and still less in the regulations. I flag up yet again a concern that needs to be addressed, if not by this Committee then by some other part of Parliament at a later stage. In the meanwhile, I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 74, in clause 21, page 19, line 32, leave out “something” and insert “a specified statement”.

Jimmy Hood (Labour, Lanark and Hamilton East)

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

No. 75, in clause 21, page 19, line 33, leave out “something” and insert “a specified statement”.

No. 76, in clause 21, page 19, line 36, leave out “something” and insert “a specified statement”.

Patrick Mercer (Conservative, Newark)

These three amendments are simple. Paragraphs (a), (b) and (c) of subsection (4) include rather imprecise references to

“something recorded in that individual’s entry”,

“something provided to the Secretary of State”,

and

“something otherwise available to the Secretary of State”.

The amendments would simply replace the three references to “something” with “a specified statement”. I hope that will tie down subsection (4) and make it a little clearer.

No doubt the Under-Secretary will tell us that this clause should be read in conjunction with clause 11 and that he will resist the change to the wording, because changing the wording here would mean that the wording in clause 11 ought to be changed. However, I would still appreciate his explanation.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman anticipates my notes on clause 21 and this amendment. The clause must be seen in the light of clause 11, which contains the power to require information for validating the register in the first place. Clause 21 comes into play when it appears that that information is incorrect and it needs to be cross-checked or verified with another Department. He is right that the clause is complementary to and consistent with clause 11—perhaps that should have been clause 12, but that is a different argument.

Clauses 11 and 21 use the word “something” to refer to the information that can be required for the purposes of verification. As we have discussed, “something” covers any information that can be recorded in the register. Beyond that, the Bill does not limit the information to which clauses 11 and 21 can relate. However, the persons from whom information might be required under clause 11—and thus provided to, under clause 21—must be specified in an order, which will be subject to the affirmative procedure.

While the hon. Gentleman was speaking, I was reminded of the phrase “something of the night” and the fact that, although it is vague and imprecise, we all knew what she meant by it. In this legislation, “something” refers to things such as a photograph and fingerprints. The term is deliberately wide, because we are talking about not only facts, data and words, but other information that could be held on the register, such as a biometric reading or a photograph. However, I assure the hon. Gentleman again that it does not extend to anything other than the information held on the register. Schedule 1 guarantees that. The term “something” refers to paragraph 2 of schedule 1, which lists

“(a)a photograph of his head and shoulders;

(b)his signature;

(c)his fingerprints;

(d)other biometric information about him.”

The term is used so that all the registrable facts can be encompassed.

I have explained why the amendment is neither sensible nor necessary, and I ask the hon. Gentleman to withdraw it.

Patrick Mercer (Conservative, Newark)

I am grateful to the Under-Secretary for that explanation. I should apologise for my earlier absence; I trust the reason was explained and the apology accepted.

Edward Garnier (Conservative, Harborough)

I did not explain.

Patrick Mercer (Conservative, Newark)

Forgive me, Mr. Hood. I attended the evacuation exercise in the Chamber. I hope you will indulge me for having done so.

The phrase “déjà vu” has come to mind many times in respect of the Bill. I remember putting precisely the same arguments as those I have put with regard to this amendment to a different Minister in a previous debate, and I received almost the same arguments in response. I take on board the points that have been made about clause 11 and paragraph 2 of schedule 1, although I still have reservations and remain less than content. However, as the Under-Secretary gave a lucid explanation, as did his ministerial colleague, I beg to ask leave to withdraw the amendment.

Clause 22 - Power to authorise other uses of information

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 77, in clause 22, page 20, line 3, at end insert—

‘(da)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 would add to clause 22 a reference to the requirements of the European convention, by implication if not expressly. No doubt the Government will say that such a reference is implied anyhow. The amendment also refers, again by implication, to the Civil Contingencies Act 2004 and the Regulation of Investigative Powers Act 2000.

I will set the amendment in context. We are dealing with the passing of information to a public authority without the consent of the individual. “Public authority” is, for the purposes of the Bill, defined by clause 43, on general interpretation, as having

“the same meaning as in section 6 of the Human Rights Act 1998”.

I was going to take the Committee directly to the Human Rights Act 1998, but, as we discussed a couple of weeks ago, a public authority comes to be defined not so much by its name as by what it does. For example, while the BBC is not, for some purposes, a public authority, for other purposes it is.

One can think of any number of examples in which, when making a private contract, a body is not a public authority, but, when it is doing something that affects the individual citizen, it is a public authority. We need to be careful about accepting at face value the definition in the general interpretation clause about what a public authority is.

I also have a complaint that, as before, the Government are requiring Parliament to give them unspecified and vague powers. To see that, one has to look only at clause 22(1)(b), which says that

“the information is of a description specified or described in an order made by the Secretary of State”.

We have not seen those orders. I do not suppose that we will get see them in time for consideration on Report. I doubt that we will see a definition on Third Reading. I doubt that even the other place will receive a definition that would satisfy a reasonable reader when they discuss the Bill later in the year or early next year.

Although “public authority” is defined by section 6 of the Human Rights Act, the definition is not specified or described here, nor is the information referred to in subsection (1)(d). Therefore, it seems to us important that the Government should explain themselves so that, to refer to amendment No. 77,

“any disclosure of information which results or would result in interference with an individual’s private and family life is proportionate”.

That is the individual’s article 8 right under the European convention.

That disclosure of information must be

“for the purpose of the protection of public safety or public health”.

That is my Civil Contingencies Act point. The definitions of public safety and public health in the Civil Contingencies Act are remarkably wide.

Disclosure of information could also be for

“the protection of the rights and freedoms of others.”

Again, under a number of Acts of Parliament passed in the last half dozen years, all sorts of powers are given to all sorts of people, no doubt for good public policy reasons. However, when mixed into the bowl of the Identity Cards Bill, concerns of private rights against the state come to mind.

I want to be assured by the Government, not just by implication and not just because the Secretary of State has rubber-stamped the front of the Bill with his belief that it complies with the Human Rights Act 1998. I have seen that happen many times and I have seen it challenged. I have seen individual aspects of Bills, or of clauses of Bills, fall foul of the Human Rights Act. I want to be assured that the Government have in mind the rights of the individual and the interference that could be done to the rights of the individual, particularly in relation to his family life and his private life. That is described in our amendment.

Andy Burnham (Labour/Co-operative, Leigh)

I hope that I can deal quickly with the amendments. The hon. and learned Gentleman complained earlier that the Government were not listening to some of the concerns. He will know that when the Bill was last debated in Committee there was a fairly detailed discussion on the clause and the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), gave a commitment to consider the concerns and to give further thought to the clause. I hope that the hon. and learned Gentleman will be reassured that the clause has been improved in that respect and that the Government have responded to some of the concerns put to the then Minister by the hon. Member for Woking (Mr. Malins).

The clause is more narrowly drawn than it was. I shall mention some of the ways in which it has been improved. As the hon. and learned Gentleman knows, although we expect most of the checks on the register to be done with the consent of the individual, there are circumstances where we will allow them to be done without consent—and we have been discussing those today. However, once the scheme is in operation, it is right to keep open the possibility that there may be other situations in which it becomes necessary, in the public interest, to provide information to other public bodies. It would be wrong to list those bodies in the Bill now and wrong to require further primary legislation as the logical extension of the measure, which is why the clause is drafted as it is.

It might help Committee members if I give a few examples of how we envisage the power being used. For instance, it might be sensible to allow local government to have access to the information. The hon. and learned Gentleman knows that local government administers the payment of housing benefit. In fraud investigations it would be sensible, from its point of view, for it to have access to the register. The fire and ambulance services could also be beneficiaries of access when verifying identity against the register following a major accident.

My hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) raised the possibility that the register may, at some point, be used for electoral registration. In future, particularly in respect of measures to combat electoral fraud, the national identity register could provide a sensible way to maintain the integrity of the electoral register and tackle, nay eliminate, electoral fraud.

There are circumstances in which it is sensible, for good public administration, for us to extend the bodies who could benefit through secondary legislation, with the key proviso that Parliament decides that it is necessary to do so.

The power in the clause is subject to the affirmative order-making procedure. An organisation could not be added without parliamentary approval. That was added after the previous discussion—it was to be done under the negative procedure before. The Government have listened to the concerns that were expressed previously and have strengthened the Bill in that way. The authorisation procedure provided for in clause 23 would be subject to applicable oversight arrangements under the national identity commissioner.

The power was significantly narrowed during the parliamentary progress of the Bill in the previous Session and further safeguards have been added. The information in paragraph 9 of schedule 1 is now excluded. Information can be provided only to bodies that are public authorities under the Human Rights Act 1998. That is spelled out in the definitions contained in the back of the Bill. A further significant safeguard has been added to this version of the Bill: subsection (2) now provides that the order-making power can be used only when the provision of information is necessary in the public interest, as defined in clause 1(4).

Amendment No. 77 would insert a requirement for any provision under clause 22 to be proportionate in its interference with an individual’s private and family life and to be

“for the purpose of ... the protection of public safety or public health, or ... the protection of the rights and freedoms of others.”

Nobody in the Committee would have any objection to those reasons, and I understand the hon. and learned Gentleman’s concern. However, I reassure him that the amendment is unnecessary because of subsection (2) and the full application of the Human Rights Act to the Bill. 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 when such interference is

“in accordance with the law ... 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.”

That is a detailed list. However, we are confident and can give the hon. and learned Gentleman the assurance that the Bill fully complies with the Human Rights Act. His amendment, which lists the circumstances in which information may be provided, is more limited than the provisions of the ECHR. We believe that agreeing to it could mean that the scheme was not able to maximise its benefits.

The amendment would exclude the ability to provide information without consent to any additional organisations when that was in the interests of national security, economic well-being or the prevention or detection of crime. That would mean that we might not be able to provide information to local authorities for fraud-prevention purposes, for example.

I hope that Opposition Members will accept that we listened to the concerns that were expressed by their Front-Bench team in the previous Session. The safeguards provided under the subsection have been significantly strengthened and the subsection’s scope has been significantly narrowed. I do not think that Opposition Members need fear anything from the bodies that we have in mind. As I say, local government is an obvious example of such a body, but the information might also be useful to the fire or emergency services.

The possibility of using the register in respect of electoral registration should be considered by Members on both sides of the Committee, given the number of people who currently fall off the electoral register. My hon. Friend the Member for Sheffield, Attercliffe made that important point.

For all those reasons and because of the final safeguard of the House deciding whether the power would ever be invoked, Opposition Members can feel reassured that they have been listened to and that the clause includes the necessary safeguards, given the Human Rights Act and the access to information provisions. I ask the hon. and learned Gentleman to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

My hon. Friend the Member for Newark will explain in a minute how satisfactory we think the parliamentary oversight in this clause. However, I am getting more and more worried as the Bill progresses. The Under-Secretary says that it “might” be sensible to let local government or the fire and ambulance services have access to the information. It might be, but we ought to be told whether that is or is not Government policy and whether it is or is not intended that the Bill should cover that.

Andy Burnham (Labour/Co-operative, Leigh)

Perhaps the hon. and learned Gentleman should have listened to what I said. He will be told, because the House will decide whether a body will be included. It is not for me to dictate which bodies could be included; I simply gave him some examples of how the provisions in the Bill might logically be extended to provide for good public administration. However, ultimately, the House would decide whether that power was ever invoked.

Edward Garnier (Conservative, Harborough)

I want the Under-Secretary to understand me. I am not making a remark or advancing an argument that is personal to him. I am concerned, on behalf of the Opposition and the citizens whom I represent, about the growing activities of the state. He is wearing the uniform, metaphorically speaking, of a Minister. As far as I am concerned, he represents the state and it is up to the Government, who, under our system, present drafted legislation to Parliament for approval, to explain to the Committee what they have in mind. If they do not have anything in mind, that does not prevent me from complaining that we are passing legislation in a vacuum.

I know that the Government say that there will be a statutory instrument before Parliament in due course —we shall discuss later whether it can be properly overseen—but that may not happen for 18 months or two years. In the meantime, as a Member of Parliament, I am required to give the Government the power to do things that they have not necessarily thought about. If they have thought about those things, they are not prepared to tell us in sufficient detail how their thinking has developed.

The Government must understand that problem if they are to understand the genuine concerns of the public about how Parliament is required to give the Government power. That power must be accountable to the public through Parliament and, if the Government have no idea of what they intend in the clauses, we are all the poorer. I appreciate the arithmetic of the parliamentary situation but that does not prevent me, and should not inhibit me, from making such complaints. In the meantime, I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 78, in clause 22, page 20, line 15, at end add—

‘(4)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.’.

This amendment continues the movement that we started by tabling amendment No. 77, to which my hon. and learned Friend the Member for Harborough has already referred. Amendment No. 78 refers once again to the whole business of parliamentary approval for what the Government suggest in the Bill. The amendment would simply add a new subsection (4).

I followed closely what the Under-Secretary said about the previous amendment. I was interested to hear that we won some small gains during the last debate on the Bill and I trust he is prepared to give further ground on this amendment for the simple reason that we know the power to disclose without consent is theoretically extended without limit under the clause.

Regardless of the fact that approval is required for regulation, many of us remain extremely worried by the fact that the Home Secretary has essentially written himself a blank cheque. It is difficult to imagine a situation under the clause in which disclosure of information on the register might be justified. On top of that clauses 19 and 21 are already extremely broad. I would have thought that the scope offered by those two clauses was enough.

The amendment is very simple. It is designed merely to ensure that parliamentary approval occurs in order that the power to authorise other uses of information under the clause is scrutinised by both Houses. I could go on, but time forbids. I hope that my point is clear and that the Under-Secretary agrees to the amendment. I am interested to know his views.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Briefly, I added my name to the amendment for the reasons already outlined by the hon. Gentleman. It seems that we have had vagueness heaped on vagueness, and broadness broadened by broadness.

The amendment would put an important check on the manner in which the powers could be extended, but there is a slight irony in the fact that the hon. Gentleman would provide it by way of the so-called super-affirmative procedure. The Committee is aware that I have severe reservations about its efficacy. Ironically, it might even be argued that, by borrowing one of the mechanisms devised by the Government, the official Opposition have managed to produce what would be regarded by some—though clearly not by you, Mr. Hood—as a wrecking amendment.

It is important to have a measure of proper parliamentary scrutiny of the inclusion of further bodies under the provisions, which already include a very broad range of powers. I shall be interested to hear from the Under-Secretary, not least to learn whether he can give any reason why the super-affirmative procedure cannot be made to work in this instance.

Andy Burnham (Labour/Co-operative, Leigh)

Opposition Members have said that the amendment would ensure that bodies were designated under the powers through the super-affirmative procedure, rather than the affirmative. We have come some distance towards the hon. Member for Newark, but I am going to disappoint him, I am afraid, as we shall resist going the extra mile and using the super-affirmative procedure, partly because we feel it would represent inappropriate parliamentary scrutiny of what is proposed.

The super-affirmative procedure would be right for powers to do with compulsion, because that would directly affect every citizen of the country. It would, obviously, be a major change. We believe it would be right to use a procedure involving that level of scrutiny in such a case, notwithstanding our exchanges on whether that procedure, as currently conceived, is a workable and effective solution. We endeavour to get back to the hon. Member for Orkney and Shetland on that point.

Before going into detail, I should say to the hon. Member for Newark that we did not just elevate the check in the clause from the negative to the affirmative procedure. As he knows, subsection (2) was also added, which directly links any order made under this part of the Bill to the public interest test. We also narrowed the provisions by taking out the measures giving access to the information relevant to paragraph 9 of schedule 1. He will see that that is listed under subsection (1)(a). So, in many ways, we have limited the scope of the clause in respect of comments from Opposition Members.

To pick up on the comments made about the previous clause by the hon. and learned Member for Harborough, there might be some very sensible reasons for wanting to use the powers—reasons behind which no one need fear anything other than good intent. Local authorities administer public benefits, such as housing benefit and council tax benefit. Clearly, if a register exists that enables them to carry out those obligations to a higher standard and with a higher level of identity proof, we should logically let them use it. It would not make much sense to take on the expense of creating the register and not give other public bodies that may suffer from identity fraud access to the register. That would be perverse.

Another example might involve the emergency services, be it the fire or the ambulance service. Such a service might seek powers to identify people at the scene of accidents. If it emerged that that was a sensible use of the register and a request was made for that information, all of us, as parliamentarians, would have a duty to listen to people in such a position who were asking us to extend their ability to do their job more effectively. We would have that debate in the House if such a request were made.

I mentioned the purpose relating to electoral registration. We return to the general point that in our view the Bill will aid good public administration right across the piece. Where there is a high standard of identity verification, it makes sense to allow access to organisations that in their statutory functions carry out identity checks and depend on a high standard of identity verification.

I explained to the hon. Member for Newark that the clause is now subject to the affirmative procedure. To go through the same process as is envisaged for the powers to do with compulsion would be to escalate things too far. If anyone were to seek the powers, it would be an obligation too far and could make it more difficult for them to be exercised. I refer him back to the fact that the clause has been significantly strengthened. Bearing my comments in mind, I ask him to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I am grateful to the Under-Secretary for his clear exposition, and I note that subsection (2) has been included since we last went round this particular buoy. I maintain that super-affirmative powers would be helpful, but none the less, bearing in mind his comments and not wishing to sound more curmudgeonly than normal, I beg to ask leave to withdraw the amendment.

Clause 23 - Rules for using information without individual’s consent

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 79, in clause 23, page 20, line 32, leave out from “person” to end of line 34.

If parts of the Bill could be described as a dog’s breakfast, clause 23 is the breakfast, lunch and tea. No canine would be dissatisfied when approaching it. As I mentioned, it is completely incomprehensible, but, worse, it will provide the Secretary of State with huge powers to do things that may be in the national interest—we are uncertain that they would be.

In relation to the Secretary of State, the clause uses phrases such as “may provide a person”, “may by regulations” and “may also by regulations”, and those regulations “may include” certain things. It says that the “rank or position” of the high-ranking police officer

“may be specified in the regulations”.

If clause 23 is desperately vague, subsection (3)(c), which I seek to delete, is even vaguer. Subsection (3) says that the regulations “may include” this, that and the other. Subsection (3)(c) refers to

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

It is simply not good enough to legislate on that basis. I ask the Under-Secretary to explain himself.

Andy Burnham (Labour/Co-operative, Leigh)

I feel like I am in the headmaster’s study, having to explain myself. I begin by saying to the hon. and learned Gentleman that the clause will give him some reassurance on the concerns raised in regard to the preceding clauses. Clause 23 lays down the rules. It allows the Secretary of State to lay down the rules for the process by which requests for using information will proceed. That is an important safeguard.

The clause uses the word “may”, but it is clear what is being authorised. Subsection (3)(b) refers to

“provision specifying or describing the persons who are entitled to make applications for the provision of information to a person”.

Okay, that might be vague, but what it means is that the rank and seniority needed for a request to be made, and for information subsequently to be provided, can be specified. That directly addresses the concerns of the hon. Member for Lancaster and Wyre about information swirling round organisations. I take his point on that, but the limits to which it can swirl round can be laid down. There can be limits in relation to the rank of the recipient.

Other limits can also be imposed. Paragraph (c) refers to

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

That is the issue at stake in relation to this amendment. This part of the clause allows the Secretary of State to lay out a clear procedure—for instance, that the request must be delivered in writing. That means that there can be a clear audit of the process; it will all be documented. In our view, that will be a safeguard, rather than a weakness that allows any abuse.

Roberta Blackman-Woods (Labour, City of Durham)

My reading of the clause is different from that of the hon. and learned Member for Harborough. I think it restricts the use of the register; it restricts who can receive information and imposes requirements on the Secretary of State to specify who can make a request for information. Therefore, I am unsure how this concern arises.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend is right. This part of the Bill puts in place the rules and safeguards that address the concerns that have been raised. Therefore, Opposition Members should be adding to it, rather than subtracting from it, because each subsection will enable the Secretary of State to be more prescriptive about how requests are made, such as by specifying the person entitled to make applications. Therefore, the clause is important.

The Secretary of State may use a power under the clause to impose regulations stating that applications should be in writing. I am sure hon. Members agree that it might be sensible to insist on that, because it will ensure that there is a documented process and that everything is above board and carried out in a proper manner. The amendment would remove the Secretary of State’s power to insist on such things.

Opposition Members can be assured that a rigorous process will underpin access to information, and the Secretary of State’s powers to lay down regulations are clearly set out. We agree with Opposition Members that the rules should be as clear and rigorous as possible to ensure that there is not abuse of the kind that the hon. Member for Lancaster and Wyre referred to. It is obviously right that public bodies have the ability to access information in order for them better to do their job, but it is obviously wrong that that information should then leak out or be abused in any way.

These rules will be drafted for the clear purpose that I have outlined; they will give Opposition Members the reassurance they seek. The amendment is unnecessary, and I ask the hon. and learned Member for Harborough to withdraw it.

Edward Garnier (Conservative, Harborough)

The most significant words the Under-Secretary uttered were that the clause “will enable the Secretary of State to be more prescriptive”. Of course, the Under-Secretary placed the emphasis on the second half—that is, on “to be more prescriptive”—but I am concerned about the first half, which is that the clause “enables the Secretary of State”. Therein lies the philosophical difference between the Government and the Opposition, and between the statists and those who want the citizen to have a role in the direction of his own life. That may be an unbridgeable gap, but it is a gap that needs to be identified and explained to the public at large.

There is no better way to keep something secret than to make a speech about it either on the Floor of the House or in Committee, but let me assure you, Mr. Hood, that Conservative Members will continue to argue for a better balance between the state and the individual, and to argue that the individual should be given the benefit of the doubt, where there is any, as opposed to power and discretion being given to the Secretary of State or the state.

I will not detain the Committee any longer by pressing the amendment to a Division. The time permitted by the Government for discussion of the Bill does not permit us to vote on everything with which we disagree, although that is what we would like to do. There will be other opportunities—I suspect in another place—for this aspect, and many others, of this wholly unsatisfactory Bill to be debated and scrutinised with greater thoroughness, and I look forward to their lordships’ assistance in that regard later this year. I beg to ask leave to withdraw the amendment.

Clause 24 - Appointment of National Identity Scheme Commissioner

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 218, in clause 24, page 21, line 14, leave out “The Secretary of State” and insert “Parliament”.

I want to expose the fiction of the Secretary of State and the Executive—the Government—being different from Parliament. It will not take an inordinate length of time to do so. We are keen to give Parliament the power of oversight of the Government. We all know that the Executive sit not just in Parliament, but on it. We are talking about an Executive with a large majority—in historical terms, a majority of 66 over all other parties is large, albeit a good deal smaller than the majorities achieved in 1997 and 2001. That majority effectively means that there is no difference between parliamentary oversight and Government diktat. The amendment is perhaps a desperate attempt by the Opposition to get greater oversight of what the Government do in our name.

Subsection (1) reads:

“The Secretary of State must appoint a Commissioner to be known as the National Identity Scheme Commissioner.”

That is all very well, but I urge the Government to allow Parliament a rather greater say in affairs of state from time to time. I will be interested to hear what they have to say on that.

Tony McNulty (Labour, Harrow East)

As ever, I thank the hon. and learned Gentleman for his brevity. He should not be timid: if he wants Divisions, let us have Divisions. There is plenty of time. We are not rushing towards an impending deadline. More time has been made available, so he can have Divisions at his leisure.

I do not mean to detain the Committee unduly on this amendment, but let me just say that since the Nolan Committee on Standards in Public Life reported, all Government appointments have been made under the auspices of the Office of the Commissioner for Public Appointments, at Parliament’s behest. Given the existence of the commissioner, we do not feel it necessary for the national identity scheme commissioner to be appointed only by resolution of both Houses of Parliament. The national identity scheme commissioner will be appointed by the Secretary of State. The standard rules on public appointments will apply and there are untold precedents for such an arrangement—not only in other Departments, but in the Home Office.

The surveillance commissioner is appointed by the Prime Minister after consultation with Scottish Ministers, the intelligence services commissioner is appointed by the Prime Minister and the immigration services commissioner is appointed by the Secretary of State. All are appointed under the auspices discussed and agreed by Parliament according to the Nolan report on standards in public life. That is more than a sufficient safeguard: the process is as open to scrutiny and as transparent as such things can be.

Nothing would be achieved by going down the route suggested by the amendment. I hazard a guess that if any other Government were in power, they would make such an appointment in the prescribed manner laid down by Parliament rather than by resolution in both Houses. For those reasons, the amendment is unnecessary. I ask the hon. and learned Gentleman to withdraw it.

Edward Garnier (Conservative, Harborough)

Gosh, I am persuaded by the Minister as far as this: I shall withdraw my amendment. None the less, the balance between the Executive and Parliament is out of kilter and needs to be reformed. I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 219, in clause 24, page 21, line 27, after “cards”, insert “and the ID Register”.

This amendment is simple, but it begs an important question. I fail to understand why we did not get on to debating the substantive matter of identity cards until seven clauses had first been discussed. That led to comments from my hon. and learned Friend the Member for Harborough and others that the Bill, which we hope will not become an Act, although no doubt it will, should be termed the national identity register Bill.

It seems curious that the register should suddenly be left out of an important paragraph of clause 24, which involves us talking about the important issue of the appointment of the national identity scheme commissioner. I do not want to beg the point; with the simple addition of the words in the amendment, we would begin to refocus ourselves on the fact that we are talking about not only a little bit of plastic that nobody can compel us to carry and that we will not be required to surrender when someone asks for it, but the fact that there will be a national register, the objections to which we have already discussed at length. Adding those simple words would help to make things a little simpler.

Tony McNulty (Labour, Harrow East)

The amendment is simply unnecessary. Paragraphs (a), (b) and (c) of clause 24(2) cover in detail all that is laid out in the legislation and the commissioner’s role in relation to the register. They do not cover

“the uses to which ID cards are being put”,

which is why paragraph (d) is there. Paragraphs (a), (b) and (c) cover the whole gamut of the Bill as the domain within which the commissioner should carry out his or her role. Adding mention of the national register to paragraph (d) would at least confuse and at worst obfuscate to the point of being an art form. I ask the hon. Gentleman to withdraw his amendment.

Patrick Mercer (Conservative, Newark)

We all appreciate art forms in every style that the Minister suggests. Sadly, however, what he is saying is not correct. The amendment would add considerably to the clause, rather than detract from it, but given the fact that we are trying only to add a couple of extra words, and in light of what he said about paragraphs (a), (b) and (c), I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 80, in clause 24, page 21, line 28, leave out from ‘Commissioner’ end of line 43 and insert

‘include general policy matters, but do not include—

‘(a)the exercise of powers which under this Act are exercisable by statutory instrument or by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I.1979/1573 (N.I.12)) unless any particular case affected by these powers or rules raises a concern of substantial public interest;

(b)the imposition of civil penalties, objections to such penalties or appeals against them, unless a particular penalty, objection or appeal raises a concern of substantial public interest;

(c)the operation of so much of this Act or of any subordinate legislation as imposes or relates to criminal offences in any particular case, unless a particular case raises a concern of substantial public interest;

(d)the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest; or

(e)the provision to another member of the intelligence services, in accordance with regulations under section 23(5), of information that may be provided to that Director-General, Chief or Director in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: No. 184, in clause 24, page 21, line 28, leave out ‘do not’ and insert ‘shall also’.

No. 81, in clause 24, page 21, line 29, leave out paragraphs (a) to (c).

No. 220, in clause 24, page 21, line 36 , after second ‘service’, insert

‘the Chief Executive of the Serious and Organised Crime Agency’.

No. 82, in clause 24, page 21, line 43, at end insert—

‘(3A)‘The Commissioner may, where appropriate—

(a)before undertaking a review which include the policy towards the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters, liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner, or

(b)liaise with the Information Commissioner in relation to any processing of personal data.’.

Edward Garnier (Conservative, Harborough)

We are concerned with the commissioner’s ability to oversee the work of the Secretary of State, the administration of the ID register and the identity card scheme. The amendments deal with clause 24(3), which begins:

“The matters to be kept under review by the Commissioner do not include”,

after which various exceptions are listed. Why are those exceptions not included? Although there will be good reasons why a national identity scheme commissioner should not consider particular cases, he should have oversight on a thematic basis. Amendment No. 80 would permit the commissioner to take a general oversight of policy matters, but it would expressly exclude from that general thematic oversight the matters set out in its proposed paragraphs (a), (b), (c), (d) and (e), which would be substituted for the current wording. I hope that the Committee shares our view that it does not take much imagination to see that that is a sensible, proper thing for the commissioner to do, and that it does not detract from the powers that the Secretary of State wishes to give to himself in relation to his official functions.

I will leave it to my hon. Friend the Member for Westmorland and Lonsdale to deal with amendment No. 184.

Amendment No. 81 would delete paragraphs (a) to (c) of subsection (3). The thrust of the arguments that I would deploy on that amendment is the same as in relation to amendment No. 80.

Amendment No. 220 would add the chief executive of the Serious and Organised Crime Agency to paragraph (d), in addition to the director general of the Security Service, the chief of the Secret Intelligence Service or the director of Government Communications Headquarters. If the Government are serious about what they intend, surely they should employ all the heads of the relevant police or security services in the detection and prevention of serious crime. Either that is an oversight, or there is some magic in the poor man’s not being included in this subsection.

Amendment No. 82 would add new subsection 3A, which says:

“The Commissioner may, where appropriate ... before undertaking a review which include the policy towards the provision of information to the”

various directors general,

“liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner ... or liaise with the Information Commissioner in relation to any processing of personal data.”

That is a sensible cross-directors general liaison. There may be matters that affect that aspect of the security services in a way that should not be limited to one service head. If the commissioner thinks it appropriate, surely he should be able to refer to the intelligence services commissioner the review that he is undertaking. I cannot for the life of me see why that should be objectionable to the Government, any more than I can see why proposed subsection (3A)(b), which amendment No. 82 seeks to add to the Bill, should be.

The matter is one of sensible, thematic oversight. The amendment does not seek to interfere with the courts or with the discretion of the Secretary of State, although I object to the way in which the Secretary of State is giving himself huge discretion under the Bill. It seeks to provide sensible and dispassionate oversight of a growing area of interference in the life of the individual.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

Given that it is my first opportunity to do so, I thank the Minister for his kind words last week in observing my absence because of important constituency business in the north-west. [Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

I did not say which constituency in the north-west.

I wish to speak in favour of amendment No. 184, which stands in my name and that of my hon. Friend the Member for Orkney and Shetland. I will do so briefly. The amendment would alter subsection (3) by altering “do not” to “shall also” to widen the powers of the commissioner.

Given the controversial nature of the register and the Government’s sincere desire to allay our fears, which are shared by many people outside this place, we think that it is odd to restrict the role of the commissioner so much. It is interesting that the commissioner will be able to review only general structural issues, not individual complaints or cases, or how the scheme operates in practice. For example, the commissioner will be excluded from considering the imposition of fines, criminal offences relating to identity cards and information provided to the security services and the Secret Intelligence Service or GCHQ.

Given the culture-changing nature of the Bill and the register, it is ridiculous not to give the commissioner the opportunity to have a more far-reaching role and the ability to consider the operation of the scheme that he or she is there to monitor. I would be grateful if the Minister took that into account.

Nick Palmer (Labour, Broxtowe)

I seek some clarification from the hon. and learned Member for Harborough. Under the Government’s proposal, it would be possible—I suggest that it would also be natural—for the commissioner to report on the extent to which civil penalties were being applied, including on whether they were increasing or decreasing and so on. In amendment No. 80, the Opposition specifically rule that out. In the Government’s version, only “appeals against civil penalties” are ruled out. In the Conservative version,

“the imposition of ... penalties, objections to such penalties or appeals against them”

are all ruled out. I wonder why.

Ben Wallace (Conservative, Lancaster and Wyre)

I would like some clarification. I speak in support of amendment No. 184, which was tabled by the hon. Member for Westmorland and Lonsdale, whom I welcome back to the Committee. He is my neighbour in the north-west, and I am sure that the good people of Westmorland and Lonsdale will be delighted to hear that their new MP enjoyed Cheadle so much.

It is important to ask why the Minister chose to narrow the functions of the commissioner and to limit the areas that he or she can consider. I ask him to clarify that point. I am aware that a number of these agencies already have their own commissioners for oversight, but it is a broad responsibility for the individual commissioners to analyse the use of the database. The proposed commissioner will be best positioned to understand the issue in the round, where the weaknesses are being exposed and where abuse of the system has taken place. Will the Minister clarify that point?

Tony McNulty (Labour, Harrow East)

Simply put, all matters outlined in subsection (3) are broadly either subject to parliamentary scrutiny or fall within the jurisdiction of the courts or within the remit of another commissioner. Their exclusion, as proposed by subsection (3), is intended to avoid doubt and confusion, and to add clarity. The notion that the provision is somehow a mischievous way of restricting and narrowing the commissioner’s remit and his oversight of the project outlined in the Bill is complete nonsense. If that is the best that the hon. Member for Westmorland and Lonsdale can do, perhaps he should have stayed in Cheadle.

The hon. and learned Member for Harborough offered more serious comments in his amendment. He accepted the premise that many areas fall within the jurisdiction of others, while he still sought to place broader policy matters and other items within the remit of the commissioner. His points were better made than those in the schoolboy amendment that we have just dispatched.

None the less, for good reasons, those matters still go beyond the remit of the national identity scheme commissioner. Amendment No. 80 would add to the remit of the commissioner general policy matters and areas that are excluded from his remit, if they are a matter of substantial public interest. I am grateful that the amendment recognises that those matters should be excluded, and also that they should be admitted only if they are of substantial public interest. None the less, the amendment is unnecessary, and subsection (3) should remain in its totality.

Amendment No. 82 should be read in conjunction with amendment No. 80, as the hon. and learned Gentleman suggested. Amendment No. 82 would first allow the commissioner, when undertaking a review of the provision of information to the intelligence agencies, to liaise with the intelligence services commissioner with a view to referring responsibility for that review to him. The amendment would also allow the national identity scheme commissioner to liaise with the Information Commissioner about the processing of personal data.

The role of the national identity scheme commissioner was drafted following our consultations about the draft Bill. It is important that the powers in the Bill can be appropriately scrutinised, but it is also important that we use the resources available to us appropriately. The reason for excluding the matters listed in subsection (3) from the role of the commissioner is that those parts of the Bill are already subject to independent scrutiny by Parliament, the judiciary or the intelligence services commissioner.

The amendment is important, and I want to take each of its elements in turn. First, the exercise of powers by means of statutory instrument or statutory rule in Northern Ireland would be subject to parliamentary oversight. Secondly, appeals against civil penalties would be a matter for the civil courts. Thirdly, the criminal offences that are dealt with would be a matter for the criminal courts. Fourthly, the provision of information to the intelligence services would be subject to oversight of the intelligence services commissioner and the investigatory powers tribunal dealt with in clause 26. Finally, the Secretary of State’s powers in relation to passports under clause 39 would not be connected with identity cards or the register.

There are clear reasons why each item should be excluded. To talk about the matter in terms of narrowing or restricting the role of the commissioner, as the hon. Member for Westmorland and Lonsdale did, is not appropriate. The Bill provides adequate and more appropriate scrutiny of the excluded functions, as I have just outlined, and as such, amendments Nos. 184 and 81 are unnecessary. Amendment No. 80 would provide that the commissioner should have the oversight that I have discussed.

Identity Cards Bill - Standing Committee D

Identity Cards Bill

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are discussing the following amendments: No. 184, in clause 24, page 21, line 28, leave out ‘do not’ and insert ‘shall also’.

No. 81, in clause 24, page 21, line 29, leave out paragraphs (a) to (c).

No. 220, in clause 24, page 21, line 36, after second ‘service’, insert

‘the Chief Executive of the Serious and Organised Crime Agency’.

No. 82, in clause 24, page 21, line 43, at end insert—

‘(3A)‘The Commissioner may, where appropriate—

(a)before undertaking a review which include the policy towards the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters, liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner, or

(b)liaise with the Information Commissioner in relation to any processing of personal data.’.

Tony McNulty (Labour, Harrow East)

Welcome to our deliberations, Mr. Gale. Before the break, I was drawing my remarks on amendment No. 80 to a close. The only substantive point to make is about oversight in relation to an excluded matter when a particular case raises a concern of substantial public interest. I said that the notion that clause 24(3)(a) to (g) in any way deliberately limits the commissioner’s role is not correct. These jurisdictions overlap with those of other commissioners and bodies, including Parliament. However, I want to discuss the fair point about a concern that is of substantial public interest.

To a large extent, the amendment is seeking to do something that the clause does already. Let us take proposed paragraph (b) of the amendment. While it is not for the commissioner to review the actual exercise of delegated powers—that is Parliament’s role, not the national identity scheme commissioner’s—it is clear from subsection (2)(a) that it is the commissioner’s role to review the Secretary of State’s functions

“under this Act or the subordinate legislation made under it”.

In so far as statutory instruments, regulations and statutory rules in a Northern Ireland context need reviewing within the context of the Act, that is already covered under subsection (2)(a). It is right to exclude the wider scrutiny role of subordinate legislation in general terms, which is the purview of this place, from the commissioner’s deliberations.

To use the language of the proposed paragraph (a), I refer to the position in which

“any particular case affected by these powers or rules raises a concern of substantial public interest”

under the Bill. That will obviously fall within the jurisdiction of the commissioner.

By referring to appeals against civil penalties, proposed paragraph (b) of amendment No. 80 would do precisely what clause 24(3)(b) does. Appeals are for the civil courts and it would be inappropriate for the commissioner to have an overlapping jurisdiction. However, it is right that the commissioner has oversight of the rest of the civil penalties machinery, because that will be run by the Secretary of State and, without the commissioner, would not be subject to an oversight. Therefore, proposed paragraph (b) of the amendment, which would remove that part of the commissioner’s jurisdiction, is inappropriate.

Proposed paragraph (c) of the amendment would enable the commissioner to examine the prosecution of a person for a criminal offence under the Bill if that raised a matter of substantial public interest. I do not believe that that is right. Prosecutions are a matter for the police, the Crown Prosecution Service and the courts. In exceptional circumstances after the event, a prosecution will be the subject of an inquiry. It would be unusual to empower a commissioner to review prosecutions that he considered would raise a matter of substantial public interest. Although I understand the grain of the amendment, it is not necessary for the reasons that I have outlined.

Proposed paragraphs (d) and (e) would give the commissioner jurisdiction to review the provision of information to the security services, again subject to the substantial public interest test. The reason for leaving national security matters to existing statutory commissioners, who were created specifically to deal with national security matters, is obvious. I am referring to the overlapping of jurisdictions with existing commissioners. We do not want such sensitive issues to be dealt with in wide-ranging forums. It is better that they be dealt with by those who deal with them daily. Although I understand in which direction the hon. and learned Member for Harborough (Mr. Garnier) wants to draw us, I do not believe that amendment No. 80 is appropriate. It has raised some interesting points, but I ask him to withdraw it.

Edward Garnier (Conservative, Harborough)

I shall seek leave to withdraw the amendment because it can probably be more fully discussed on another occasion.

The hon. Member for Broxtowe (Dr. Palmer) made one of his usual interesting and wholly Delphic interventions. He fails to understand—it is probably not his fault because he has not been an Opposition Member of Parliament, having come straight to the Government Benches in 1997, or 2001—

Kali Mountford (Labour, Colne Valley)

1997.

Edward Garnier (Conservative, Harborough)

I stand corrected. The hon. Gentleman fails to understand the restrictions under which the Opposition must work on the Floor of the House and in Committee. They must do their best to create opportunities for debate, to hold the Government to account and to tease out their policy, particularly with a Christmas tree Bill such as this, which gives the Secretary of State huge powers to do things in the name of the state. The Government have not condescended to give us the details at this necessary stage.

The hon. Gentleman will forgive me if I tease him slightly. This is not a court of law or a place where the burden of proof is deployed. It is not even a place where any standard of proof must be deployed. It is not an intellectual debating society, but the rough and tumble of Parliament. It is not a perfect way of dealing with the matter and I accept his implied criticisms that some of our amendments would do things that in his eyes are illogical or contrary to the public interest.

The purpose of all our amendments is to get the Government to explain themselves or, if they will not, to meet them head on and to test the will of the Committee by seeking a vote. The hon. Gentleman knows as well as I do that we can never win a vote if the Government have their people here. Although we may win arguments, I cannot engage in a sensible intellectual argument with him about the merit of the policy because, at the end of the day, the Government will simply say, “Very interesting. Let us have a Division and defeat the Opposition.” That is Parliament and I am not complaining about it. I have got used to it since 1997, but if he has a spell in opposition—I trust that he will have that opportunity in due course—he will realise that there are more perfect ways of holding a Government to account. However, that is all in parenthesis to what the Minister said.

There will be other opportunities to debate as parliamentarians the issues covered by our amendments. In the meantime, I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 83, in clause 24, page 22, line 8, at end insert

‘to a maximum of 10 members of staff’.

I welcome you back, Mr. Gale. It is good to have you with us.

The amendment is simple and seeks to discover what the national identity scheme commissioner will look like when he exists, red in tooth and claw. How will the Government appoint him and what will his establishment look like? Subsection (6) states:

“The Secretary of State—

(a)after consultation with the Commissioner, and”—

the grammar is strange—

“(b)subject to the approval of the Treasury as to numbers,

must provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.”

The amendment would add,

“to a maximum of 10”.

We want, purely and simply, to find out exactly what the commissioner’s establishment will be, how much it will cost and how much it will add to the overall cost of this already exorbitantly expensive scheme.

Tony McNulty (Labour, Harrow East)

As the hon. Gentleman implies, amendment No. 83 would limit the commissioner’s staff to 10 people. Although the Government have not determined how many people would be required to work for the commissioner, we have given the matter some initial consideration and simply do not believe that it is possible for the commissioner to carry out his functions with so few people, not least because his functions have been extended following the Home Affairs Committee’s recommendations to include not just oversight and the provision of information from the register but the general operation of the scheme. The Government consider that it is for the commissioner as well as the Treasury to be consulted when determining staff numbers. That will ensure that the commissioner has sufficient resources to undertake his statutory functions, but no more than necessary.

It is entirely standard practice to provide such a safeguard; for example, it was used in the Regulation of Investigatory Powers Act 2000 for the establishment of the Intelligence Services Commissioner. We are not about to be profligate with public resources in respect of the staff that the national identity scheme commissioner needs. Hon. Members will understand that his role is key to the overall scrutiny of the system, certainly as it is introduced and beds down. We do not want unduly to limit his staff numbers in quite the way that the hon. Gentleman seeks to do.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

Will the Minister reflect on one small point: the difference in tone between Liberal Democrat opposition to the Bill and that of the Conservatives? If it were to come to a vote, my party would not support the amendment. It appears that the motivation of the official Opposition is simply to limit expenditure, whereas our concern is to ensure that the commissioner has the greatest ability possible to scrutinise the system. The limit suggested by the Conservatives would perhaps save a few pence here and there, but it would limit his effectiveness.

Tony McNulty (Labour, Harrow East)

I am grateful for the import and flow of that intervention, if nothing else. The hon. Gentleman will forgive me if I do not take much notice of the Liberal Democrat tone—it varies from day to day, street to street, ward to ward and constituency to constituency. However, in good order and with good spirit, I accept the flow of his comments—for today. No doubt they will change tomorrow or next week.

The Government are clear that a staff of 10 is not sufficient for the commissioner to carry out his task. With that sentiment, I ask the hon. Member for Newark (Patrick Mercer) to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I have listened to what the Minister has said. As usual, his argument has been lucid.

I accept the fact that the commissioner is not yet established. Although I believe that the addition that we would make would help and assist, I take it that the Minister’s reassurance about subsection (6)(b) means that, to all intents and purposes, the amendment will be observed in the principle if not in the letter. On that note, I beg to ask leave to withdraw the amendment.

Clause 25 - Reports by Commissioner

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 84, in clause 25, page 22, line 16, leave out from ‘must’ to ‘State’ and insert

‘lay before each House of Parliament a general report’.

Roger Gale (Conservative, North Thanet)

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

No. 85, in clause 25, page 22, line 18, leave out subsections (2) to (5) and insert—

‘(2)The Commissioner may also, at any time, lay before each House of Parliament such other reports on any matter relating to the carrying out of those functions as the Commissioner thinks fit.’.

No. 86, in clause 25, page 22, line 18, leave out subsection (2).

No. 87, in clause 25, page 22, line 21, leave out subsection (3).

No. 88, in clause 25, page 22, line 25, leave out from ‘would’ to end of line 27 and insert

‘cause substantial harm to the public interest’.

No. 89, in clause 25, page 22, line 26, leave out from ‘security’ to end of line 27.

No. 90, in clause 25, page 22, line 27, after ‘of’, insert ‘serious’.

No. 221, in clause 25, page 22, line 33, at end add—

‘(6)Any statement laid under subsection (5) must provide an explanation of why a matter has been excluded.’.

Edward Garnier (Conservative, Harborough)

Amendment No. 84 stands in my name, the names of my hon. Friends, and the name of the hon. Member for Orkney and Shetland (Mr. Carmichael). The amendments can be divided into two sections. The first deals with the balance of power between the Executive—the Home Secretary—and Parliament, and the second deals with the power to edit the report. As Opposition Members, we are keen that the balance of power should be redressed—as I said earlier, it is out of kilter—and that Parliament should have a greater say in the commissioner’s reporting function. If the Secretary of State is to control the reports that are laid before Parliament, and if the commissioner has first to report to him rather than directly to Parliament, we should be told if not what the commissioner has had to edit, at least when he has had to edit his report or reports at the request of the Secretary of State. It is not clear in the Bill whether items or sections of the commissioner’s report that are removed from the report placed by the Secretary of State before Parliament will have been redacted or simply removed without Members of Parliament knowing what has been taken out.

Time does not permit me to read out each amendment in the group under discussion, but there is a serious argument and an issue to be joined between Parliament and the Executive. Here we are in Parliament trying to control the Executive over where the power to dispose should rest. Clause 25(1) states that

“the Commissioner must make a report to the Secretary of State about the carrying out of the Commissioner’s functions.”

Since, as the Government would have it, the commissioner is appointed by the Secretary of State subject to all the public appointments issues that the Minister mentioned, no doubt the Government think it right that the commissioner must report to the Secretary of State.

We, on the other hand, say that, despite the fact that the commissioner will be appointed by the Secretary of State, the commissioner is carrying out a public function for which he should account to Parliament, not because we distrust the commissioner, but because this is a hugely important issue of public policy. It is a whole new departure in the relationship between the state and the individual, and we, as protectors of the rights of the individual, the constituent and any individual who may not be a citizen but who happens to be within our shores, should have the right to inspect and to demand of the commissioner his report.

Amendments Nos. 85, 86 and 87 essentially make the same point. They would command the commissioner to account to us rather than to the Secretary of State. I can understand that as a matter of common sense the commissioner and the Secretary of State may discover matters about crime and terrorism about which it would not be sensible for the public to know. None the less, even if the commissioner cannot tell us everything, he should at the very least present via the Secretary of State a report that blacks out what cannot be seen, so that we know precisely what exercise the report has been through before it was presented to Parliament.

That is the essential import of our two sets of amendments to that one line. I shall not labour the point further, save to say that in relation to amendment No. 221, the provision requires an explanation, which I hope that the Government shall not feel inhibited from giving to Members of Parliament.

Tobias Ellwood (Conservative, Bournemouth East)

The method by which parliamentarians can keep track of the progress of this legislation will be key to the reports that are made by the commissioner. As we have debated over the past few days, the entire project of a register and of producing ID cards is massive from a financial as well as a technical point of view. In many ways, the project is untested, so it is imperative that Members have an opportunity to monitor its progress and comment on it.

Will the Minister clarify how Parliament can take advantage of the reports in order to understand what the commissioner is doing and implement those reports? Bearing in mind the security-related nature of the reports, I am concerned that they may never see the light of day. My worry is that matters can be hidden behind some of the provisions, which means that we will not have an opportunity to discuss the reports, take on board public opinion and mould the project in such a way that it is palatable and appropriate.

Tony McNulty (Labour, Harrow East)

In the Government’s response to the Select Committee on Home Affairs, we accepted the recommendation that the national identity scheme commissioner should have broader oversight of the whole scheme. That is broadly provided for in clauses 24 and 25. The commissioner’s remit will therefore include examining the uses to which ID cards are put and the dealings with recipients of information held on the register, and it is not limited to the administration and issuing of the cards. We accepted those points, which were raised by the Home Affairs Committee.

While I appreciate the arguments in support of the amendment, the Government consider it necessary for reports to be addressed to the Secretary of State, with the potential for parts of a report to be excluded from the version laid before Parliament. That is the case primarily because of the function of the commissioner in overseeing the provision of information without consent. As I shall discuss later, many of the concerns of the hon. and learned Member for Harborough are dealt with in the clause.

There are precedents for this situation in the oversight of police activities, which falls to the Office of the Surveillance Commissioners. The chief surveillance commissioner reports annually to the Prime Minister and has similar discretion to that set out in the clause. Similarly, when Her Majesty’s inspector of constabulary reports to the Secretary of State, he has the power to exclude from publication any part of the report that would be against the interests of national security or might jeopardise the safety of any person.

The amendments would remove the Secretary of State’s discretion to exclude information held in a report where he considers that a matter contained in the report would be prejudicial to national security or the prevention or detection of crime. Given the sensitivity of some of the information relating to provision of information without consent, there are certain circumstances in which it would be prejudicial to these matters if a report were laid in Parliament that could be publicly read.

For example, the commissioner will have responsibility for oversight of the provision of information without consent to the Serious Organised Crime Agency. It cannot be in the public interest or Parliament’s interest for those matters to be in the public domain. To make public the purposes for which that organisation had been provided with information in every case would allow very sensitive information to be released. It would also be inconsistent with the usual oversight procedures for these bodies and, as such, may limit their use of the register. That would impinge on those bodies and their efficacy—in this case, in fighting organised and serious crime. Again, that cannot be in the national or public interest.

I do not think it is appropriate either to raise the exclusion threshold to “serious” crime, since information may be provided without consent under the previous clauses for all crime. The Government therefore see the power to exempt information as necessary. There are safeguards to the use of the power, however. The Secretary of State must consult the commissioner before any part of a report is excluded from publication. Decisions are not simply made on a whim of the Secretary of State. The practice of the intelligence services commissioner and the interception of communications commissioner is to provide a report to the Prime Minister in two parts; one is to be laid in Parliament, and there will also be a confidential annexe not for publication. If such a practice were adopted by the commissioner, it would effectively allow him to recommend which parts of his report should be made public, although this will be done in consultation with the Secretary of State.

We have listened to the arguments made about the power to exclude information from the reports. Observant Opposition Members will have noticed that this Session’s Bill no longer allows matters to be excluded on the ground that they would be prejudicial to the continued discharge of the functions of any public authority or would be otherwise contrary to the public interest. Those elements were in the previous Bill, but we dropped them from this one. If a matter were excluded from the report, a statement would be laid before Parliament to that effect, just as it is in relation to reports made by the commissioners whom I have mentioned. The relevant provision is subsection (5).

I do not consider it necessary for an explanation to be provided as to why a matter has been excluded. As I mentioned, only two bases are left in the Bill on which matters can be excluded: where something is prejudicial to national security or to the prevention or detection of crime. Providing further explanation may well result in those aims being frustrated, and bodies that are doing serious business in the public and national interest may be hidebound or restricted in their ability to use the register.

I am sure about that view, despite the points that have been made concerning the relationship between the Executive and Parliament in relation to scrutiny, which I accept. I am sure that it is not the intention of the amendment to debilitate in any way the ability of the Serious Organised Crime Agency and others to utilise the register. In that context, I ask the hon. and learned Gentleman as pleasantly as I can to seek leave to withdraw the amendment.

Ben Wallace (Conservative, Lancaster and Wyre)

I still cannot see why the commissioner cannot respond to Parliament. I take the Minister’s points on board, but I also note that under subsection (3), much of the commissioner’s remit will be dealt with by the other commissioners whom the Minister mentioned, who report directly to the Prime Minister. Given the use of national security or national interest as a barrier, I wonder what is left for the commissioner to expose.

I take the point about the Serious Organised Crime Agency, but in a debate on a previous amendment, the Government was asked why that agency was not included in the matters under review. In this instance, I do not see why the commissioner could not report to Parliament, and I am not convinced by the Minister’s response on that. There are plenty of other areas that are excluded, so I am not persuaded. I hope that my hon. and learned Friend the Member for Harborough will press the point.

Tobias Ellwood (Conservative, Bournemouth East)

May I press the Minister again to respond to my queries about the checking process that Parliament will have with regard to the commissioner and the report? Will Members of Parliament have the opportunity to review annually what is happening? I am concerned that the clause contains provisions that will prevent Members from carrying out that role.

I understand that we are about eight years away from the launch of the project in its entirety. The Minister gave other examples of existing structures in which commissioners or senior representatives provide reports, but they are already in situ. This is an entirely new project using taxpayers’ money that is yet to be tested. That is all the more reason why Parliament should have an opportunity to comment on the matter. Will the Minister also elaborate on the period between now and the appointment of the commissioner?

We have eight years until the project is launched. If at some point the figures were added up and we saw that we had ended up spending twice as much as the original cost of, say, £5 billion, would the Government concede that we were spending too much money on the project? Parliament must have an opportunity to comment on the process as things develop between now and the launch of the project. We are in untested territory; it is not a matter of simply picking up something that already exists and putting it into practice. Will the Minister clarify how we will ensure that the project remains accountable?

Edward Garnier (Conservative, Harborough)

I am sympathetic to the argument put forward by my hon. Friend. It would be helpful if the Government explained—if not now, they should do so at some early stage—whether there will be an annual debate on the commissioner’s report, albeit that it may come via the Secretary of State.

I am also sympathetic to the point made by my hon. Friend the Member for Lancaster and Wyre (Mr. Wallace), but I am afraid that time does not permit us to press it to the extent that we would like. I look forward to hearing the matter discussed in another place, not with greater leisure—that is the wrong word—but with more time available.

I listened to what the Minister had to say about the amendment, and I will not seek to press it to a Division, but he should understand—I think that he probably does—that this area of public policy is unravelling minute by minute. Parliament as a whole needs to be kept abreast, and it also needs to keep control of the Executive. If the Home Secretary wants to look at and edit the commissioner’s report before he condescends to let us see it, it behoves the Government all the more vigorously to be frank, candid and open with the legislature as the legislation develops—or is rolled out, as the Minister would say.

I am not usually fond of co-operating with the Government, but I will do so in this instance. In the spirit of co-operation, I will ask for the amendment to be withdrawn. I hope that the Minister accepts, however, that this issue will not go away simply because of that. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss new clause 2—Reports on the Commissioner’s functions—

‘(1)As soon as practicable after the end of each calendar year, the Commissioner must lay before Parliament a report about the carrying out of the Commissioner’s functions.

(2)The Commissioner may also, at any other time, lay before Parliament other reports on any matter relating to any of the functions or powers set out in this Act.’.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

I am sure that the Minister and the Committee will acknowledge that my party does not accept that the national identity register is justified. We will keep making that point. I was sorry to hear that the Minister thinks that we are inconsistent, because I think that it is fair to say that my party is perhaps the only party that has been consistent on this issue since it was first raised. I have no doubt that once upon a time Government Members were progressive politicians who thought the sort of Orwellian nonsense that we are currently addressing should be fought against rather than backed without question. Our opposition is consistent and principled, rather than opportunistic. None the less, in the context of the Bill, we welcome the creation of a national identity commissioner. We think that that is necessary and that it will improve the legislation.

The new clause would extend the commissioner’s powers in a defined way, rather than in the open-ended way that clearly so irked the Minister earlier. Let me outline its two main purposes. It would allow the commissioner to make an annual report with a wide-ranging remit that covered the carrying out of all their functions. It would also give the commissioner the power to make other reports to Parliament relating to other functions and powers in the legislation.

We want the commissioner to be an independent and robust reviewer of the scheme’s operation, and we are not convinced that there is sufficient capacity for the role to operate in that way. The commissioner does not have the power—we believe that they should do—to review the adequacy of their own role or even officially to express a view. Why not allow the commissioner to have that role?

The Secretary of State must lay a copy of the commissioner’s reports before Parliament, but we are concerned that the Secretary of State can edit and omit things for an unjustifiably wide range of reasons, if in their judgment those items are prejudicial to national security—[Interruption.]

Roger Gale (Conservative, North Thanet)

Order. The Committee is aware of my disdain for private conversations in the Room. There are lovely green Benches outside in the Corridor; anybody who wishes to have a private conversation can go out and sit on them.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

Thank you, Mr. Gale.

I am concerned that the Secretary of State can decide what is and what is not acceptable in the commissioner’s reports. Far too much licence is given; for instance, the report may edited on the basis that something in it could be prejudicial to the discharge of the functions of any public body. Of course, that would include the Home Office and the UK Passport Service. Items in the report that were critical of the services—they would be vital elements and central to the role of the commissioner—could be excluded from it. That is a matter of great concern.

No doubt, the Minister will entertain us with a demonstration of incredulity at the idea that there could be any abuse of the power or that people could play fast and loose with it. However, as we said earlier, the general opposition to the Bill is based on the obvious fact that we cannot bind our successors to behave in a certain way. The Minister knows that. Not to define and extend the powers of the commissioner is naive and politically counter-productive. It simply stokes the suspicions and fears of people such as me and the increasing number of people outside Parliament who are opposed to the Bill. We are merely trying to be helpful and to do a better public relations job on the Bill than the Government are doing.

Roger Gale (Conservative, North Thanet)

Order. Before we proceed, I remind the Committee that new clause 2 has not been moved. Were it to be moved, that would be done in the appropriate place at the end of our considerations, although it is being taken with this stand part debate on clause 25.

Tony McNulty (Labour, Harrow East)

If the hon. Member for Westmorland and Lonsdale (Tim Farron) is trying to be helpful, he has failed miserably. I will forgive him, because he has been in the House for only about three months.

The role and function of the commissioner is a very serious matter. To treat it so lightly and tritely, in what was, in essence, a fourth-form debating society speech is simply not good enough. The hon. Gentleman talked about the wide-ranging scope to exclude things in the report. National security and the prevention or detection of crime do not constitute a wide-ranging scope. He talked about the second element of his new clause as though it were some wonderful, radical innovation that even Lloyd George would delight in were he still with us, but that element has already been included in subsection (2), which states:

“The Commissioner may also, at any other time, make such report to the Secretary of State on any matter relating to the carrying out of those functions as the Commissioner thinks fit.”

The hon. Gentleman should be thoroughly ashamed of himself if he is happy three months into his parliamentary term, on the basis of some obtuse, fourth-form, third-party or minor party point of principle, to undermine in any way, shape or form the work of the security forces, the Serious Organised Crime Agency and others who seek to defend our national security and to detect those who would commit crime. The Committee should dispatch with relish new clause 2 for the fourth-form drivel that it is.

Clause 27 - Possession of false identity documents etc.

Roger Gale (Conservative, North Thanet)

We now come to amendment No. 91, with which we will discuss the following amendments: No. 92, in clause 27, page 23, line 29, at end insert

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

No. 225, in clause 27, page 24, line 5, after ‘false’, insert

‘and that he knows to be false or has reasonable grounds to believe to be false’.

No. 226, in clause 27, page 24, line 6, after ‘obtained’, insert

‘and that he knows or has reasonable grounds to believe to have been improperly obtained’.

Patrick Mercer (Conservative, Newark)

I rise to move the amendment, but I do not have my notes to hand.

Edward Garnier (Conservative, Harborough)

I apologise, Mr. Gale. I have left my hon. Friend in the lurch. I was busy preparing to speak to amendment No. 93; as you know, Mr. Gale, I have behind me the full resources of the vast number of Opposition civil servants. I shall leave it to my hon. Friend to deal with amendment No. 91.

Tony McNulty (Labour, Harrow East)

I was drawn to speak not by the hon. and learned Gentleman’s attempt to introduce amendment No. 91, but by his point about the vast array of civil servants that he has, or has not, got behind him. I want to make it clear to the entire Committee that the vast army of civil servants that I have behind me had nothing to do with my previous speech.

Edward Garnier (Conservative, Harborough)

That I believe.

Roger Gale (Conservative, North Thanet)

Order. On reflection, I think that I had better say nothing about that, but I am not entirely clear which hon. Member has moved amendment No. 91.

Edward Garnier (Conservative, Harborough)

As I am on my feet, I shall deal briefly with amendment No. 91, which I shall now move.

I beg to move amendment No. 91, in clause 27, page 23, line 29, at end insert

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

The amendment stands in my name and in the names of my hon. Friends. My hon. Friend the Member for Newark will try to catch your eye shortly, Mr. Gale.

Nick Palmer (Labour, Broxtowe)

I shall assist the hon. Member for Newark and his researchers by intervening briefly.

I note what the hon. and learned Member for Harborough said earlier, but I have served on about a dozen Bill Committees, and I know that it is customary for Opposition proposals to make sense even if they are only probing amendments. I do not know whether Opposition Members have had the chance to read subsection (2). The amendment mentions

“reasonable cause to be in possession of that document”.

Apparently, that is proposed despite subsection (2), which essentially relates to a person wishing to use the document to pretend to be somebody else. Do they really mean that?

Patrick Mercer (Conservative, Newark)

I am most grateful for the indulgence of several of the Members present.

Roger Gale (Conservative, North Thanet)

Order. I apologise, but I was carried away with such enthusiasm in trying to work out who was moving the amendment that I forgot to put the Question. I hereby rectify that.

Patrick Mercer (Conservative, Newark)

I seem to have put everyone in a bit of a pother with this one. It is entirely my fault and I am grateful for the assistance of all Members, including the hon. Member for Broxtowe, who no doubt seeks to assist me in respect of this group of amendments. He has a point; amendments Nos. 91 and 92 overlap unacceptably. Poor drafting on my part has made amendment No. 91 redundant. Therefore, if it is in order, Mr. Gale, I shall simply address amendment No. 92.

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman may address any of the amendments in the group. The amendment moved is the one that he does not want to talk about—amendment No. 91—about which I have no power to do anything.

Patrick Mercer (Conservative, Newark)

Thank you, Mr. Gale. In that case I will quickly make my comments address amendment No. 91; I wish that they would reflect more closely amendment No. 92.

Amendment No.91 seeks to insert these words:

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

That is expanded further in amendment No. 92:

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

I think that, despite my peregrinations, it is clear that we simply want to introduce in clause 27 a further understanding of why a false identity document will not necessarily always be acquired knowingly. There could be good reasons why someone has false documentation without their necessarily realising. They could have borrowed it or—this is more likely—had it planted upon them.

No doubt the hon. Member for Westmorland and Lonsdale will wish to add his comments about the other amendments, but I would simply be most grateful if the Under-Secretary made it clear why the proposed words should not be included.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

I rise simply in regard to the amendments standing in my name and that of my hon. Friend the Member for Orkney and Shetland. Surely, in relation to clause 27(5)(a), intent is everything. There are many reasons why a person may have an inaccurate and potentially false document on their person without intending to mislead, to enable access or to pass themselves off as somebody else. Clearly it is possible that someone could have an out-of-date document with their maiden name on it, which would indeed be false, because they had not got round to changing it. It is important that we improve this part of the Bill by clarifying that intent is the key element. It is on that basis that I support the amendments.

Ben Wallace (Conservative, Lancaster and Wyre)

I am not sure whether we will have a stand to debate on the clause. [Hon. Members: “Stand part”.] Indeed. If any part of the Bill is the best part and the one that should remain if everything else was stripped away, it is this. It is an important and useful contribution to fighting terrorism and false identity, and I welcome the clause.

However, I must ask one clarificatory question, which may arise for legal or other reasons. Subsection (7) says that the good people of Scotland and Northern Ireland will get a term of imprisonment

“not exceeding six months or a fine not exceeding the statutory maximum”,

whereas the good people of England and Wales will get a term “not exceeding 12 months”. Why is there a difference in sentencing? I am sure the reason can be pointed out easily.

In a spirit of support, I say that this is a useful part of the Bill and I know that agencies throughout government will support it. It is a good step towards solving our problem.

David Drew (Labour, Stroud)

On a point of order, Mr. Gale. I want to be completely clear. Amendment No. 92 seems to replace amendment No. 91, although amendment No. 91 is the lead amendment. I seek your guidance as to how the Opposition get to amendment No. 92, given that amendment No. 91 is not their preferred amendment.

Roger Gale (Conservative, North Thanet)

For once, that is a genuine point of order and I will endeavour to respond. Amendment No. 91 is the lead amendment. It is grouped with amendments Nos. 92, 225 and 226. Once the amendments have been debated, it is open not only to the Opposition, but to any Member of the Committee, to seek to persuade the Chair to call another amendment independently. In other words, if the hon. Gentleman wishes to persuade me that he would like to move amendment No. 92 formally, that is something I will consider at the appropriate time. The amendment under discussion, which has been moved, is amendment No. 91. I hope everyone understands that.

Andy Burnham (Labour/Co-operative, Leigh)

Thank you, Mr. Gale. I think I understand that point. We will find out.

First, I want to preface my main remarks by picking up on the comments made by the hon. Member for Lancaster and Wyre and thanking him for his helpful contribution. He has wide-ranging experience in the field and I welcome his welcome of the new offences, which might be enacted in advance of any national identity register or ID card scheme. We will have to consider that more closely once the Bill has been passed.

Amendments Nos. 91 and 92 would, in different ways, qualify the offence of possession of false identity documents with intent to use them. In considering the amendments, I urge Opposition Members to read subsections (1) and (2) of clause 27 together. By doing so, they will understand the balance of the clause.

The amendments would qualify possession of an identity document belonging to another as not falling in the scope of the offence when the individual concerned had the permission of the document’s owner and/or reasonable cause for having the document. As I said, it is apparent from reading subsections (1) and (2) together that the amendments are not necessary.

A person could not be guilty of the offence simply by having the identity document of another in his possession; the prosecution would have to prove that he had the requisite intention of using the document. The two elements taken together give rise to the offence under the clause. No defence is therefore required for the possession limb of the offence—that is, no defence can be made, as it is simply a fact whether someone has an identity document in their possession or not.

If a defence were added, it could give rise to the curious situation in which a person had a reasonable excuse for being in possession of a document, yet intended to misuse it. Obviously, we would not want that slightly confusing form of words in the Bill.

The amendments tabled by the hon. Member for Westmorland and Lonsdale relate to subsection (5), which creates an offence of mere possession. That offence would attract a lower penalty and is qualified by the words “without reasonable excuse”. Paragraphs (a) and (b) of subsection (5) create offences of possession without reasonable excuse of an identity document that is false or improperly obtained. Amendments Nos. 225 and 226 would qualify those offences by providing that the person must know or have reasonable grounds to believe that the document was false or improperly obtained.

I hope I can convince the Opposition that there is no need for those amendments. If a person did not know that they had a false or improperly obtained document, that fact would in itself amount to a reasonable excuse in the eyes of the law. It was said in the debate that intent is everything, but if an individual did not know that the documents were false or improperly obtained, he could use the “reasonable excuse” provision in the clause as part of his case.

We have had a slightly disorderly discussion on these amendments, but I hope we can bring it to a close. Without rejecting the amendments flatly, I think I can say that what the Conservative and the Liberal Democrat amendments would achieve is built into the clause. With respect to the Conservative proposals, possession must be balanced by intent in subsections (1) and (2); with respect to the measures tabled by the hon. Member for Westmorland and Lonsdale, the very fact of the person’s knowledge, or lack of it, would be relevant to the test of “reasonable excuse”. In both cases, the concerns are taken care of, and I urge hon. Members not to press their amendments.

Roger Gale (Conservative, North Thanet)

On reflection, the Under-Secretary may wish to consider the fact that this Chairman does not permit disorderly debate. With that in mind, if the hon. Member for Westmorland and Lonsdale wishes to respond he may do so, but technically the hon. and learned Member for Harborough should make the winding-up speech because he moved the lead amendment.

Edward Garnier (Conservative, Harborough)

I am delighted to do so, because it enables me to thank my hon. Friend the Member for Newark for seconding the amendment with rather greater organisation than I could muster at the outset. As the Opposition spokesman, I must take responsibility for any infelicities that occur on the Conservative Benches, even if the Government have plenty to answer for.

Let me say on my hon. Friend’s behalf that I will not press the amendment to a Division. We have had a useful little discussion, but again, this is, I dare say, one of those issues that will have to be explored further at a later stage. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

Just so that there is no confusion, does anyone wish to move amendment No. 92 formally?

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 93, in clause 27, page 24, line 12, leave out “ten” and insert “twelve”.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 94, in clause 27, page 24, line 16, leave out “two” and insert “four”.

No. 95, in clause 27, page 24, line 18, leave out “twelve” and insert “six”.

Edward Garnier (Conservative, Harborough)

As the Under-Secretary said, the clause will establish three separate offences, and the amendment has been tabled to probe the Government’s thinking on the penalties for committing one of those. The first two offences, under subsections (1) and (3), require the requisite intention. Of course, the Crown—the prosecution—must prove to the requisite criminal standard the necessary criminal intent in the defendant to found a conviction.

The requisite intention is not present in the third category of offence. Instead, we face an offence committed by someone who has in his possession, or under his control, one of the documents or items set out in subsection 5(a) to (d) without reasonable excuse. Someone without a reasonable excuse could, if they were not careful, go to prison for two years or be subjected to a fine of an unspecified sum. If they were convicted after a summary trial before the magistrates in England and Wales, they could be liable to

“a term not exceeding twelve months or to a fine not exceeding the statutory maximum”.

In Scotland or Northern Ireland, they could be liable to

“a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both”.

The Under-Secretary will correct me if I am wrong, but the reason for the differences between the maximum penalty on summary trial in Northern Ireland and Scotland and in England is that following the Criminal Justice Act 2003—one of many criminal justice Acts that this Government have passed during the past few years—the arrangements for the maximum penalties available to lay magistrates, justices of the peace or what used to be called stipendiary magistrates or stipes, but are now called district judges in magistrates courts, have changed and their summary jurisdiction per offence has increased to 12 months.

I have spent far too long at Judicial Studies Board courses getting headaches trying to work out all the new criminal justice legislation to do with sentencing over the past year or so to want to impose this on my hon. Friend the Member for Newark, but perhaps he will take it from me that for the moment—it may change—the jurisdiction of England and Wales allows magistrates greater powers of summary punishment than Parliament has so far been prepared to allow the Scottish or Northern Ireland equivalents.

First, with regard to the penalties set out in the Bill, I need to know why the Government have lighted on 10 years, which will make the punishment akin to that for severe sexual offences, offences of violence and similar matters. Nasty, violent robberies and burglaries attract if not the same penalty, then certainly something similar to it. Why have they lighted on two years under subsection (5), on the unlimited fines and so forth? We need to know.

Secondly, we need to know who will have to establish that part of the case involving a reasonable excuse: is that for the defendant to prove on the balance of probabilities or for the Crown to disprove to the criminal standard? There will be occasions when mere possession of an instrument or document does not fit into the wording of the Bill. Plenty of people have a car, a gun or a knife, all of which may be used for a criminal purpose. Such instruments are innocent, but used with the wrong motive they can lead to terrible and criminal consequences.

Before passing into criminal law an item such as that set out in subsection (5), we need to be careful not to catch people who might not be able to establish a reasonable excuse, but who none the less are innocent in the eyes of most people. The Government need to exercise a little care.

Having said that, I look forward to what the Under-Secretary has to say about the penalty the Government think appropriate and my concerns on the burden of dealing with the question of a reasonable excuse.

Andy Burnham (Labour/Co-operative, Leigh)

As the hon. and learned Member for Harborough explained, the clause will create three new offences: first, possessing false identity documents with the intention of using them to establish registrable facts about a person and thus committing what is now called identity fraud; secondly, making or possessing any equipment that could be used to make false identity cards with the intention of committing or enabling someone else to commit identity fraud; and thirdly, possessing false identity documents without reasonable excuse.

Those new offences are designed to give the police an extra tool to disrupt terrorist and organised crime networks. If a person is in possession of a false document and it can be shown that they intend to use it, on indictment there is a maximum sentence of 10 years, as the hon. and learned Gentleman said. However, the offence of possession without reasonable excuse can apply even before use has been made of false documents or their intended use can be shown. That offence is triable either way; on indictment, the maximum penalty is two years.

Amendment No. 93 would increase the sentence for possessing a false identity document with the intention of using it from 10 years to 12. Amendment No. 94 would increase the penalty for the possession of a false document without reasonable excuse from two years to four. However, we think the balance in the Bill is about right.

The hon. and learned Gentleman asked how we had come up with our figures; I shall explain that to him with reference to other legislation. Section 5 of the Forgery and Counterfeiting Act 1981 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. The offence is subject to a maximum 10 years’ imprisonment. It is sensible to bring the maximum penalty for a similar offence in line with such legislation.

The hon. and learned Gentleman will know that the 1981 Act has been the principal Act of Parliament governing the use of forged documents, and the similar sentence in this Bill is consistent with it. Furthermore, having an offence of possessing forged documents and intending to use them is an attempt to bear down on the sophisticated gangs that use vast quantities of forged documents to perpetrate people trafficking, smuggling, and terrorist and organised crime networks. Ten years is a substantial sentence that is proportionate and consistent with other legislation.

Imprisonment for two years for possession of false documents without reasonable excuse should serve as a deterrent against terrorist activities, organised crime operations and those who traffic illegal or sex workers. Given the absence in the offence of any requirement of intention to use, I took the view that a maximum penalty of four years would be too high. I refer the hon. and learned Gentleman to clause 30, which contains an offence of providing false information in an entry on the register to obtain an ID card. The two-year penalty is consistent with that. We think it is balanced and right.

Clause 27 provides that a maximum penalty on summary conviction in England and Wales is 12 months, and in Scotland and Northern Ireland six months. The hon. and learned Gentleman was absolutely right to refer to the Criminal Justice Act 2003, which has given magistrates the power to extend sentencing to a maximum of 12 months.

Amendment No. 95 would replace the reference to 12 months with one to six months. We want to ensure that the Bill complies with the 2003 Act and enables magistrates to use the full range of sentencing options that the Act gives to them. The Act also provides for the concept of “custody plus”. Once that is in force, instead of imposing a six-month sentence, of which three would be served, magistrates will be able to impose a sentence of 12 months, of which a maximum of three will be spent in custody and up to nine under supervision in the community.

The Bill has been drafted so that once the powers of magistrates in England and Wales are increased, they can make full use of them in relation to the three offences that I have mentioned. We think that is right.

Edward Garnier (Conservative, Harborough)

Will the Under-Secretary help me with two points? First, is the subsection (5) offence, which is possession of one of those documents or instruments without reasonable excuse, internal to the subsection (1) and subsection (3) offences? In other words, if one were charged with a subsection (1) or subsection (3) offence, but found not guilty because one did not have the requisite intention, would the judge still be able to direct the jury, or the magistrates still be able to direct themselves, to convict on the lesser, subsection (5) offence?

It may be more appropriate to deal with my second question when we consider the next clause, and I do not wish to burden the Committee with my personal reminiscences, but wearing another of my hats, I have sentenced somebody under the Forgery and Counterfeiting Act 1981 to quite a lengthy term of imprisonment for entering this country with a forged passport. Will this Bill and the offences under clause 27 replace those relating to use of a forged passport under the 1981 Act, or will an almost identical offence be added? Will we be duplicating or providing a wholly separate law?

Andy Burnham (Labour/Co-operative, Leigh)

I shall attempt to provide the hon. and learned Gentleman with an answer. If I get any element wrong, I shall clarify the matter in writing. Proving possession and intent is obviously quite a high bar to get over, as he said. The 10-year sentence will be common when people are operating for the purposes of a serious crime. The “intent to use” limb of the offence could be difficult to prove; the offence of possession would of course be easier to prove.

I shall have to get back to the hon. and learned Gentleman on whether one offence will rule out another, or whether we might try for one offence and then go for the lesser charge. It will be up to the prosecution to determine which of the two offences might be made to stick. The lesser charge obviously carries with it a much lesser sentence, and the prosecution will have to judge which offence it is right to go for. I shall come back to him on that.

The hon. and learned Gentleman also asked about the two pieces of legislation and why we are not repealing the 1981 Act. My understanding is that the 1981 Act is much more general and deals with the whole range of documents. The Bill deals specifically with identity documents, and there are differences between the two sets of provisions.

Edward Garnier (Conservative, Harborough)

I asked my second question because, under clause 28(1)(d), a United Kingdom passport is an identity document for the purposes of clause 27. The 1981 Act deals with counterfeit passports, so I want to know whether the Government are duplicating existing law unnecessarily or whether a discrete offence will be created under the Bill that does not replicate an existing offence under the 1981 Act. I am not setting an exam; if the Under-Secretary wants to write to me about the matter, I shall be happy to receive his letter in due course.

Andy Burnham (Labour/Co-operative, Leigh)

I have already been summoned to the headmaster’s study once today, so I would hate to fail my test too. I have received some general information about the 1981 Act, which it would be useful to put on the record. The Act contains general references to making and using false instruments. I think that the instruments are defined widely under the Act and include stamps, discs and tapes. The offences therefore target forgery generally, not specifically the forgery of identity documents.

The offences do not apply to improperly obtained documents or documents that belong to someone else. In that sense, the offences that the Bill will put in place go further than those outlined under the 1981 Act. As we have discussed, they are intended to close the whole sphere in which people can perpetrate identity fraud.

We are increasingly aware that people have made fraudulent applications to obtain a passport, which could be a genuine document despite being acquired using false information. The answer to the hon. and learned Gentleman’s question is that the provision will broaden the range of offences that can be committed in respect of acquiring false documents or genuine documents that might have been acquired using false information. The Bill allows for that extension.

I hope I have covered most of the points made by the hon. and learned Gentleman, although he also asked about the burden of proof and the reasonable excuse defence under the clause. Reasonable excuse will have to be put forward by the defendant in a case; it will then be for the prosecution to disprove. Therefore, an evidential, not legal, burden will fall on the defendant. As I said to the hon. Member for Westmorland and Lonsdale, individuals might prove lack of knowledge relatively easily if the document has been acquired without their knowledge.

Edward Garnier (Conservative, Harborough)

I am sorry to interrupt the Under-Secretary, but he might be unwittingly misleading us. We must be careful about requiring a defendant to prove something. If such cases are to be similar to self-defence, that is a matter that the defendant will raise as an issue. He will present it to the court, but he cannot do that off the back of his head. He must have a basis on which to raise such a defence.

The individual does not have to do anything more than raise the issue: he will put up the target and invite the Crown to knock it down. If the process is the same as that of self-defence, I understand what the Under-Secretary is talking about, but, given that he talked about proving matters, we need a little more clarity.

Andy Burnham (Labour/Co-operative, Leigh)

I am sure the hon. and learned Gentleman will forgive me if I did not make matters clear. He is absolutely right that the defendant is not required to prove the grounds for his reasonable excuse. It is for the prosecution to knock down the case. I was simply extending the argument to say that, obviously, the individual will be safeguarded if the reasonable excuse is genuine, because it will be hard to knock down a genuine claim that there was no knowledge of the documents having been acquired. He is absolutely right about how this part of the Bill is intended to operate.

I will say a word about Scotland and Northern Ireland and the point that was raised by the hon. Member for Lancaster and Wyre in the last discussion. The apparent disparity in magistrates’ powers simply points to the fact that there are different and separate criminal justice systems in the UK. Obviously, the Bill must reflect that.

We have had a useful discussion. The penalties in the Bill are consistent with those in existing legislation. The two-year penalty is also consistent with the penalty elsewhere in the Bill for supplying false information to the register.

I can provide some further information to the hon. and learned Gentleman, who correctly picked up on the parts of the 1981 Act that deal with passports, and the duplication in legislation. I said that the Bill does not repeal parts of that Act, but in fact it does. I refer him to schedule 2, which repeals parts of the 1981 Act in respect of passports. The section 5 offence will take precedence over that Act.

With those assurances, I hope that the hon. and learned Gentleman will see fit to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

Well, I will. I beg to ask leave to withdraw the amendment.

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

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 96, in clause 28, page 24, line 39, leave out ‘or purports to be’.

Before introducing the amendments to clause 28, I would like just a brief discussion about the class of identity documents. Therefore, at the risk of cutting across you, Mr. Gale, I shall informally refer to amendments Nos. 97 and 98 while discussing amendment No. 96, simply because it is easier to debate them in that way, albeit that they are listed separately.

Roger Gale (Conservative, North Thanet)

Order. Before we proceed, it has been correctly pointed out to me that the groupings are provisional. If it helps the hon. and learned Gentleman, and if he would rather discuss amendments Nos. 97 and 98 with No. 96, he may do so on the understanding that we do not then take them separately. It is entirely up to him.

Edward Garnier (Conservative, Harborough)

I am grateful to you, Mr. Gale. I had planned to discuss them all and then say, “Not moved” when you stood to ask me to introduce amendments Nos. 97 and 98, but I am happy to go with any procedure that suits the Committee.

Roger Gale (Conservative, North Thanet)

In that case, for the sake of clarity, I will say to the Committee that we are debating the lead amendment, No. 96, with which it will be convenient to discuss the following amendments:

No. 97, in clause 28, page 25, line 6, leave out from ‘licence’ to end of line 8.

No. 98, in clause 28, page 25, line 8, at end insert

‘or

(i)an official birth certificate.’.

Edward Garnier (Conservative, Harborough)

Thank you, Mr. Gale. I do not think there is any particular magic about the order in which we discuss these amendments. Broadly, they are all designed to deal with the same point, which is to classify the identity documents that are caught by offences under clause 27. Those documents include an identity card and “a designated document”; we have discussed that, and I have expressed my concerns about the vague nature of what a designated document is or may be. There is also “an immigration document” and “a United Kingdom passport”, which we discussed briefly in relation to the previous amendment. There is also a passport issued by another country or “an international organisation”—such as a United Nations passport, presumably, or a World Trade Organisation passport. There is also

“a document that can be used ... instead of a passport”,

such as a travel document issued to an asylum applicant. Interestingly, another document is a UK driving licence, which I presume can be used for identity purposes and to enable one to travel within the common travel area of the UK and the Republic of Ireland, although it is not strictly necessary in order to do that. There is also a driving licence from a country outside the UK.

We are puzzled as to why a birth certificate is not included in that list of identity documents. If the Government are so keen that we should give to the identity register all the information contained in schedule 1, much of which might or might not be found in existing documents, why is a birth certificate not included? There seems to be a degree of inconsistency there.

My argument on this matter needs neither repetition nor elaboration. I have made the points that I intended to make, and I look forward to hearing what the Minister has to say.

Ben Wallace (Conservative, Lancaster and Wyre)

I wish to push the point made by my hon. and learned Friend the Member for Harborough. Under subsection (4), the Secretary of State will be able to designate what documents will be included, but there was an opportunity to be more specific about those documents and it has been missed.

I agree with my hon. and learned Friend that a birth certificate might be included—or even a marriage certificate. However, I would ask the Government to do even more by considering including documents such as bank statements and utility bills, although I accept that it might be difficult to refer explicitly to them in the Bill. It might be said that people move house a lot, so they might often carry other people’s utility bills. However, I am confident that clause 27(5)(c) would cover that issue.

When people apply for false identities, the official they are applying to might not know what an identity card—or a proper bank statement, or a Northern Ireland driving licence—looks like. How many officials in Lancaster, for example, have seen a Northern Ireland driving licence? That situation often arises even in respect of money: many people do not know what an Isle of Man pound looks like because they have never come across one. How many people in this Room have seen an international driving licence? It is important that we recognise that being more specific provides a good opportunity to close down some of the options that people have to steal others’ identities. Because officials are often not aware of what a valid identity card—or bank statement or birth certificate—looks like, they chase their tails.

In order for people to open a bank account, they are told, “We need to see your birth certificate.” Once they have got a birth certificate and done that—it is not hard to get hold of someone else’s birth certificate—they can go to a utility company whose staff might say, “If you show us your bank statements, we will give you a utility bill.” A person could quickly build up a whole group of contributing identity papers that would allow them to go to the next stage. Will the Minister consider putting in the Bill the actual words “birth certificate”, “marriage certificate” and perhaps even “bank statement”, so that we can close that loophole for the future?

We feel that there is a gap in the system in relation to birth certificates, for instance. I am fully aware that the Government are effectively committed to stopping the issuing of birth certificates, which will become electronic. I notice that, in the next 10 years, there is to be a move to digitise the database, and the old type of birth certificate will, no doubt, disappear.

People often start low when forging identities: they start by forging anything from a video shop card to an NHS card, which has no photograph on it and is easy to forge, because it is just a 10-digit number and is pretty hard to check. That forgery builds up, layer by layer.

I hope that the Minister will consider being more specific at this point, rather than later. I wonder whether there is a slight contradiction in subsection (4), which states:

“The Secretary of State may by order modify the list of documents in subsection (1).”

Given that there is a long time before the Bill comes into force, the Secretary of State has the opportunity to start the list now and modify it later, rather than starting with a small list and adding to it in 10 years. That way, the message to our financial institutions, the customer, the citizen and everyone else will be clear. It will show people the importance of these documents, and will show that people can get into the system right now; and that, of course, is one of the ways in which many people have forged documentation.

The good thing about the creation of this new offence is that, previously, many agencies and police forces had trouble holding an individual whom they wanted to charge with a terrorist or other offence if all that they had at their disposal was a forgery of a passport. This offence will, I hope, provide them with more reason to hold someone for longer, or to charge them so that they can establish the person’s identity in future. I had a case in which we identified someone, and the question of their identity was the only thing for which we could keep them past the seven-day period. Unfortunately, as they were charged on a minor offence, such as a credit-card forgery, they were bailed. Some 14 or 15 days later, we heard from the German authorities that the person was actually someone different. The offences set out in clause 27, if properly backed up with identity document definitions, will go a considerable way to helping identity theft to become a thing of the past.

Tony McNulty (Labour, Harrow East)

I thank you, Mr. Gale, and the hon. and learned Member for Harborough for putting the three amendments together; it makes far more sense to treat them in that fashion.

With these amendments and the clause, we need to start from the premise that the offences in the clause were designed for documents that are useful for proving identity, and as such are extremely valuable as a day-to-day means of proving identity, such as the driving licence or passport. By any token, a bank statement is not proof of identity, although it may be proof of address, temporary or otherwise. The same is true for many of the other suggestions. Our partners may disagree, but a marriage certificate is not an identity document in any way, shape or form.

I shall flit around the amendments a little. With regard to amendment No. 98, it says very clearly on top of a birth certificate that it is not an identity card, nor does it purport to be. Birth certificates are often offered as support for one of the principal documents proving identity, but we cloud the issue if we start to include such elements in the list relating to the offences under clause 27—and we are talking about those specific offences, not about the generic point of what may add to our ability to identify someone. That is why the list is deliberately discrete. However, as the hon. and learned Gentleman suggests, there is a caveat: additions to the list can be made by the affirmative procedure, I think in both Houses. However, clause 28 lists the principal elements, in terms of identity documents.

If we accepted amendment No. 96 and left out the phrase “or purports to be”, which is a standard phrase in forgery and counterfeiting legislation, individuals could produce forged documents so similar to an existing document as to be thought genuine without that being an offence. In contrast, individuals who used false details to obtain a genuine document would be liable to have committed an offence. In the context of the offences in clause 27, I do not see the necessity for such a distinction. It simply does not make sense.

The proposals to exclude driving licences other than UK driving licences also make little sense. Foreign nationals may drive in this country legally while holding driving licences issued in their country of origin. As people know, EU nationals are not compelled to change their licence to a British one, although nationals from other countries must do so after one year. It must make sense that, if we accept the premise that a UK driving licence is a bona fide identity document for the purposes of the offences in clause 27, other driving licences with which people are legally allowed to drive in this country are equally valid identity documents. I do not understand why they should be excluded.

In summary, the list needs to be considered specifically in the context of the offences under clause 27. In that context, the definition of an identity document is rightly narrow. By the by, some wider documents that go beyond identity are still covered by the Forgery and Counterfeiting Act 1981.

To return to the point made by the hon. Member for Lancaster and Wyre, having someone else’s bank statement with intent to defraud will be an offence under the Fraud Bill, which is being considered in another place. His points do not apply specifically in the context of the definition of identity documents, but they are well made. They are being dealt with elsewhere.

Ben Wallace (Conservative, Lancaster and Wyre)

I know that the details of what supporting documents will be used to make up an application for an ID card will be confirmed by secondary legislation. I ask the Minister to ensure that, when that legislation is decided by the Home Office, it makes sure that those supporting documents are protected by clause 28. When he reviews the list of supporting documents, he should remember to take it into account that the documents that could be required for an ID application should be matching, so that there is no gap between the two. That will mean that if someone is stopped on the way to apply for an ID card and they have all the supporting forgeries, they will be guilty under the offence stipulated in clause 28.

Tony McNulty (Labour, Harrow East)

That is an entirely fair point that I will consider. Anticipating your wrath, Mr. Gale, I will not reopen the debate on designated documents, which we dispatched in respect of clause 4. None the less, in the first instance, it may make sense to ensure that many of the elements duly defined as identity documents in clause 28 bear a close relationship to those that may be designated and utilised for the implementation of the scheme. You know, Mr. Gale, that when we discussed designated documents there was much discussion about driving licences and others documents, in addition to the passport.

Whether the list will be an absolute mirror, I do not know. There may be elements that we designate that are not in the list of identity documents, although I cannot think of any. The Secretary of State would have to invoke subsections (4) and (5) to add such items to the list to ensure balance. The only item that came up during our earlier deliberations was the Criminal Records Bureau letter or card check. The hon. Member for Lancaster and Wyre made a fair point about correlation between the identity document in respect of clause 29 and a designated document elsewhere in the scheme. I will take that on board.

In that context, this group of amendments is interesting but not terribly helpful, so I ask the hon. and learned Member for Harborough to seek leave to withdraw his amendment.

Edward Garnier (Conservative, Harborough)

I find the amendments both interesting and helpful, and I am sorry that the Minister does not agree. I note the word “modify” coming into view again in clause 28(4). I know what clause 43 says about modification and its cognate derivation, which is an interesting introduction to statutory language. Unless I am much mistaken, this may be the first Bill to contain the word “modify” or “modification” instead of the old word “amendment”. However, that is perhaps for another day.

If I understood my hon. Friend the Member for Lancaster and Wyre correctly, the sort of incident that he was talking about when he intervened on the Minister might be covered by the criminal law of intent. However, that would depend on how close to the making of a bogus application the individual is caught with the misleading documents. Again, it is not for me to explain the law of England and Wales; it is for the Government to explain their policy and how they hope to deal with this sort of anticipated problem. None the less, I beg to ask leave to withdraw the amendment.

Clause 29 - Unauthorised disclosure of information

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 99, in clause 29, page 25, line 34, after first ‘he’, insert ‘knowingly or recklessly’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 100, in clause 29, page 25, line 36, after ‘he’, insert ‘knowingly or recklessly’.

Patrick Mercer (Conservative, Newark)

This clause is important. It deals with unauthorised disclosure of information, and I for one am happy to see such a clause in the Bill, because I have no doubt that it will provide some reassurance to the agencies that will have to deal with confidential information. However, the conundrum in the clause is whether we are talking only about someone who is guilty of giving information unlawfully or whether there is a place for someone who believes that he is working for an organisation that has become corrupt or has individuals within it who are corrupt and needs to blow the whistle. To that end, we have tabled a number of similar amendments in respect of the clause.

Subsection (1) states:

“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; or

(b)he otherwise makes a disclosure of any such information.”

The amendments would simply insert in paragraph (a) the phrase “knowingly or recklessly” in respect of providing any person with information and in paragraph (b) the same phrase in respect of the person’s otherwise making a disclosure of any such information.

The amendments would move the burden to defend the person who acts in such a way without being in full possession of the facts. We all talk regularly to journalists and we all know how easy it is to give information that we do not necessarily mean to give away and might subsequently be damaging. Are we saying that, in such circumstances, an individual working on the register or the card will be guilty if he gives away information without lawful authority? We want to introduce a defence in the proviso “knowingly or recklessly” in both cases. If we do that, the amendments, along with the defence in subsection (4), which I suspect we will discuss later, would make it quite clear that only persons who act “knowingly or recklessly” would be liable to be prosecuted under the provision. I hope that the Under-Secretary will see the common sense behind that proposal.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

I am grateful to the hon. Member for Newark for presenting the amendments as he has. They highlight the possibilities for accidental or deliberate leaking of information from the register. I can see where he is coming from in terms of the amendments. Why should an act of innocent incompetence on the part of a lowly paid official land them in a position of having committed an offence? Subsection (4) provides mitigation on the basis that a person

“believed, on reasonable grounds, that he had lawful authority to provide the information”.

It does not provide mitigation for someone who has made an innocent error.

Dare I say that the blame lies with the Government in the first place for having created the unnecessary bank of information from which a leak could occur? This situation leads me to reaffirm my view that the best way of dealing with the potential for unauthorised disclosure is to ensure that the source of information is not created in the first place.

Roberta Blackman-Woods (Labour, City of Durham)

My constituents will be really concerned about this issue and will want to know that we are doing everything possible to prevent leaks of information. The provisions must be drawn as tightly as possible.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

I take the hon. Lady’s point. Some of her constituents are perhaps lowly paid civil servants who could end up coming a cropper over this matter.

Edward Garnier (Conservative, Harborough)

I do not want to say more than is strictly necessary, because my hon. Friend the Member for Newark has said most of what needs to be said. I just wanted to be sure about something. While we are discussing a criminal offence of unlawful disclosure—we would like it to apply only if the discloser is reckless or deliberate—what the system is concerned about is the disclosure. Confidential information might be true, but its disclosure can have terrible consequences for the individual concerned. I am thinking about health records, matters that are private to the bedroom and all sorts of confidential information that we give to our priest, doctor or teachers at school. Such information may well be true, but it is not the sort of information that we would want broadcast.

The common law of confidence, which is growing and has been doing so since the Prince Albert pictures case in the mid-19th century, is concerned to allow a claimant to seek an injunction to prevent a disclosure if he gets wind of it. First, I need to be assured not only that we will deal with the position after the event, as we do under clause 29, but that, if the disclosure is unintentional but has exactly the same devastating consequences for the subject of the breach, he or she will have some remedy under civil law against the discloser. Secondly, I need an assurance that the Department would be susceptible to an application for an injunction if I, as the citizen whose confidential information was about to be disclosed, got to hear of it. That is a failsafe, but it is necessary to have such a discussion in the context of the amendment.

Andy Burnham (Labour/Co-operative, Leigh)

Committee members have properly outlined their concerns during debates on previous clauses. I refer particularly to concerns that were raised in our morning sitting today by the hon. Member for Lancaster and Wyre about information being misused and swirling round. If the system is to have people’s full confidence—if they are to be confident that their details will not be misused—the clause and the offences in it are important.

We would all want people working in any of the fields itemised in subsection (2)—

“the establishment or maintenance of the Register ... the issue, modification, cancellation or surrender of ID cards; or ... the carrying out of the Commissioner’s functions”—

to be sure that they were working in an environment where they had access to privileged information. They should know that that information is to be treated with care and sensitivity and should not be disclosed casually to another person. When they are involved in making a disclosure, they should have this clause in mind. That would be a helpful pressure to ensure that information was not casually or accidentally disclosed to places where it should not go.

Ben Wallace (Conservative, Lancaster and Wyre)

Will the Under-Secretary clarify why he settled on the term of two years, bearing in mind the different scenarios on which information could have an impact?

Andy Burnham (Labour/Co-operative, Leigh)

Again, that is consistent with the 1981 Act. I will deal with that matter in detail, but first I shall explain a bit more about the structure of the clause. Then I shall deal with the amendments.

The clause creates a criminal offence of unauthorised provision, or disclosure of confidential information that a person has available to him by reason of his employment. However, Committee members will see that subsection (4), to which the hon. Member for Newark referred, provides a defence

“to show that ... he believed, on reasonable grounds, that he had lawful authority to provide the information or to make the ... disclosure”.

The amendments would place an obligation on the prosecution to prove that the person made the disclosure knowingly or recklessly. I guess that in tabling the amendment the hon. Gentleman was seeking to protect employees who accidentally made a disclosure or provided information. That is a fair concern. However, as long as the individual concerned could show that he was acting responsibly and professionally—accepting that mistakes are made— and was generally acting in good faith in the course of his job, he could avail himself of the defence outlined in subsection (4).

We would not want casualness or lax treatment to arise in the treatment of the information. It is important to ensure that people understand the seriousness and importance of the information that they are dealing with, and the clause is important in that respect.

I shall say something about the way in which the clause is structured, which relates to a previous discussion about the burden of proof. It would be for the prosecution to prove a lack of lawful authority for the disclosure, but the question of a reasonable subjective belief that there was lawful authority for disclosure will be in the defendant’s knowledge and difficult for the prosecution to disprove. With regard to those factors, and the serious problems that could arise if people were effectively able to determine for themselves whether a disclosure were lawful, our view is that the imposition of a reverse burden in this case is fair and reasonable. It would be for the individual to show that they had, on the balance of probabilities, acted reasonably in the course of their job. In that context, the use of such a reverse burden would be fair and reasonable.

I shall pick up on some of the concerns raised by Opposition Members. The hon. Member for Westmorland and Lonsdale talked of an unnecessary bank of information. However, as we have said before, the information that would be held under the Bill is held on other Government databases. It is not as if the register would be a new creation. The linkage between the data and the biometric is different, but that is why caution is being taken in the clause, as my hon. Friend the Member for City of Durham (Dr. Blackman-Woods) pointed out, to make sure that it is used appropriately.

The hon. and learned Member for Harborough asked about whether an individual who had suffered materially because of the effect of a disclosure would have a remedy against the discloser, whether it was intentional or not. I understand his point, but it undermines the purpose of the amendments, which seek to protect people who in the course of their jobs might disclose accidentally, although not knowingly or recklessly. His concern is slightly at odds with the amendments.

Edward Garnier (Conservative, Harborough)

My concern may be outside the amendment, but it is not at odds with it. Although an official might not be guilty of a criminal offence and therefore should not be made liable to the criminal penalty, he might none the less do something that had consequences for the subject of the confidential information. I simply wanted to be sure that a citizen’s right to civil action—either for the remedy of an injunction or, post-publication, for the remedy of damages—should not be shut out and that there was no Crown immunity, so to speak, available to the discloser by virtue of the fact that the criminal penalty was the only remedy available to the state to prevent unlawful disclosure. The Under-Secretary can write to me on that; I do not intend to examine him about the law of confidence. I am seeking to find out whether there are sufficient protections available to the citizen against the consequences of disclosure.

Andy Burnham (Labour/Co-operative, Leigh)

I do not think that I need to write to the hon. and learned Gentleman. The Bill in no way curtails an individual’s avenues for legal action if they think that they have suffered material loss or harm. The rights to civil action are not excluded by the Bill. As I explained to the hon. Member for Westmorland and Lonsdale, people could pursue an action against those in charge of the national identity register, as they could against an existing public body. If a person decided that they wished to do that, the normal injunctive remedies would apply.

Earlier, the hon. and learned Gentleman mentioned secrets of the bedroom and medical secrets, but those will not be on the register. It is hard to imagine the News of the World buying registrable facts, which would not make a fantastic story.

Edward Garnier (Conservative, Harborough)

I do not want to distract the Under-Secretary from his arguments, but I was seeking to describe the sort of information that is impressed with confidence. Clearly, I do not think that there will be News of the World-type exclusives on the data register. I was not attempting to say that there would be, and I do not think that the Under-Secretary thinks that I was.

Andy Burnham (Labour/Co-operative, Leigh)

For the avoidance of doubt, I was making absolutely clear that there would be no salacious information on the register.

In explaining our reasoning behind the clause, we can give Opposition Members the assurances that they need. People will not be punished for carrying out their work and for acting reasonably to carry out their functions in relation to their employment. Equally, we cannot have situations where there is casual management or stewardship of the register, or where it is handed around without proper process or treated casually in any way.

The clause is intended to find a way through that and to strike the right balance. People would always have recourse to the defence that we have outlined. We think that that captures what the hon. Member for Newark is after. I hope that he will see fit to withdraw his amendment. If necessary, I will come back to the hon. and learned Member for Harborough with any further clarification.

Patrick Mercer (Conservative, Newark)

I am grateful to the Under-Secretary for outlining his points. I have no doubt that we will touch again on these arguments in relation to amendment No. 103, but, in the meantime, his arguments have been sufficient for me to delay pushing the amendment to the vote. I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 101, in clause 29, page 25, line 42, after ‘issue’, insert ‘manufacture’.

This is a simple amendment, which I hope that the Under-Secretary can quickly satisfy me about. It is intended to amend subsection (2), which states:

“For the purposes of this section a person is required to keep information confidential if it is information that is or has become available to him by reason of his holding an office or employment the duties of which relate, in whole or in part, to—

(a)the establishment or maintenance of the Register;

(b)the issue, modification, cancellation or surrender of ID cards”

and so on.

Looking at identity cards—clearly, not from this country, but from countries that have an identity card scheme—we can see that many are manufactured outside the country in which they are intended to be used. At the point of manufacture, some of the cards have information included on them. I suspect that the Under-Secretary will say that the biometrics—the important part of the material—will be inserted on to the card only at a later stage in the manufacturing process. However, by using the word “manufacture”, I seek to cover not just the creation of the plastic card, but the manufacturing stages involving the further details, as they go on to the card and as it becomes more and more complex. I trust that this is a simple amendment. I think that it would help.

Andy Burnham (Labour/Co-operative, Leigh)

Now that my boss has left the Room, I may be about to get myself in trouble. I am aware of the previous debate on this point and I think that the hon. Member for Newark has a point. Amendment No. 101 would add to the circumstances in which someone could be guilty of an offence under the clause. As he said, it would include, as a person who is required to keep information confidential, someone who has access to that information because of his employment in the manufacture of ID cards.

There was a discussion last time round. I think that the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), said that the manufacture would not include the loading of any personal information on to the chip or the card. That is obviously the crucial point. The issue is not the manufacturing of a blank card to be filled with information. The point at which information is loaded on to the card is the point at which greater caution needs to be exercised.

The Bill refers to the “issue” of ID cards. It is our understanding of the present situation that issuing would include putting the personal information on to the chip. That is the reason why we have used the word “issue”.

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

Does the Under-Secretary expect that all the duties listed under subsection (2) would be categorised as positions of trust, for which applicants would be subject to security checks before they could commence their work?

Andy Burnham (Labour/Co-operative, Leigh)

Is the hon. Gentleman referring to the positions listed in subsection (2)?

Tim Farron (Liberal Democrat, Westmorland and Lonsdale)

Subsections (2)(a) and (b).

Andy Burnham (Labour/Co-operative, Leigh)

The hon. Gentleman is diverting us slightly from our current discussion, but clearly they are positions of trust. That is why the penalties are set for failure to reach the requirements on the safeguarding and safe stewardship of the data.

As I have said, the issuing of the card is the point at which personal information is loaded on to it. It is imbued with the individual’s details and presented to them. However—this is where the “however” comes in—since January, officials have been doing more work on the options for delivering the scheme. We believe that it might be possible that some data—probably not relating to a named individual but perhaps involving security codes relating to the operation of a card—would be incorporated into the card as it is manufactured. If that were the case, the hon. Member for Newark might be right in saying that the scope of the offence is not quite wide enough and it would be possible for a manufacturing company engaged in the production of cards to disclose information that we would not want disclosed.

The hon. Gentleman has a point but at this stage, if he does not mind, I will not accept the amendment. We shall take it away and consider how we can best cover the end-to-end process, including the manufacturing of the card should that be necessary. We shall see if we can find an appropriate form of words. It might be that the hon. Gentleman’s form of words is acceptable, and if we can use it we will. If not, we shall present an alternative wording on Report. On that basis, I ask him to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I am nonplussed. This is as good as it gets, I suspect. I am grateful to the Under-Secretary—let me state that clearly—for his huge indulgence on this point. Although I thoroughly accept the points that he makes about clause 43, I hope he will give due consideration to the points that I have just made about clause 43(1), which refers to the term “issue”, and clarify how that relates to manufacture. Will he also consider the wording of subsection (5), which states:

“References in this Act to the issue of a document of a card include references to its renewal, replacement or re-issue (with or without modifications).”?

With those codicils in place, I accept everything that the Under-Secretary said. I shall be extremely interested to hear his comeback in due course, and on that basis I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 103, in clause 29, page 26, line 10, at end 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.’.

We have already had some revealing discussions about the way that our earlier amendments might or might not sit upon the guilt of a person. I have mentioned that in subsection (4) there is already one defence:

“a defence for a person charged with an offence under this section to show that”

and so on. We have grounds there not for the tout or the informant, but for the worker who feels that they are part of an organisation that has gone astray to make representations to that effect legitimately and properly. The amendment would introduce a further defence.

I do not want to detain the Committee. There are obviously grounds on which disclosing information could be the right and proper thing to do. We should like to insert the amendment to complement and reinforce the defence in subsection (4), and to ensure that the misdemeanours of organisations working above the individual do not go unchecked.

Kali Mountford (Labour, Colne Valley)

I am concerned about the amendment. I assume that the hon. Gentleman seeks to probe the Minister about what defence he thinks should be available to any civil servant or other person who may wish to disclose information. The amendment seems to be a sort of David Shayler way of dealing with matters. If an individual feels that it is his or her right to give over information, because in their view it is a matter of public interest, it would drive a coach and horses through civil service codes of practice.

There may be grounds for considering those codes, and an entirely separate Bill may need to analyse when a civil servant might want to raise a matter of public interest. However, one person may see in another person’s records something terrible about their past. It may be an offence that they have committed, and the first person may want to disclose to the other person’s parents or to anybody living near the other person that this is someone whom they would not want to have living by them. The first person could then say, “I thought it was a matter of public interest; I felt that the other person was dangerous and should not be living near my little sister.” That would be an improper way of dealing with public interest.

The way the amendment is framed gives me cause for concern about how somebody would decide what was in the public interest, in whose interest it really was, and how we could pursue the defence of something being in the public interest possibly not as I would see it, but as only that person would see it. The amendment has some dangerous flaws, and I hope that the hon. Gentleman will reconsider what he had to say.

Andy Burnham (Labour/Co-operative, Leigh)

My hon. Friend has raised an important point. The disclosure of information would relate only to registrable facts. It is important to say that it would be hard to envisage how the disclosure of an individual’s registrable facts could raise a broad issue of public interest. In making that comment, I am not seeking to say that there could never be such circumstances; I accept that there could be. My hon. Friend has suggested how those circumstances might arise. However, given that we are dealing with narrow identity data, it is hard to imagine how a broad public interest concern could arise from having an individual’s records on the system. If a discrepancy were to arise and someone knew that someone’s details were false, there are plenty of avenues to go down to correct that information without going down the route of public disclosure.

Clause 29 creates an offence of unauthorised disclosure or provision of confidential information that is available to the person concerned by reasons of employment or duties relating to the register. As I explained, it is a defence to show that the individual believed on reasonable grounds that he had lawful authority to make the disclosure. The amendment would add another defence in which the provision of information or the making of the disclosure in question was in the public interest.

The hon. Member for Newark can draw some support for the amendment by saying that there are similar defences on the statute book relating to other Acts of Parliament. For example, section 55 of the Data Protection Act 1998 creates an offence of unlawfully obtaining personal data. I do not want the hon. Gentleman to think that he is on a roll, as I would get into further trouble with my boss. I shall therefore set out three reasons why it is inappropriate to make the offence in clause 29 subject to a public interest defence.

First, the offence relates purely to information that is connected with the scheme that the Bill sets up. By the nature of the scheme, that information will tend to relate to narrow personal information about other people. As we discussed, it will not extend to information of a more personal nature that might be held by other agencies. That would be held in an entirely different place. The information is purely identification data. The circumstances in which it will be in the public interest for such information to be released will be limited, if they exist at all. Again, if an employee working in the areas set out in subsection (2) were to feel that there was a discrepancy with an entry in the register, there would be plenty of avenues by which that could be pursued without recourse to disclosure.

Secondly, in so far as an employee feels that a matter needs to be considered, he will be able and, indeed, obliged to approach the national identity commissioner. Thirdly, to provide an alternative channel that, in effect, would permit employees to disclose information and, once it was in the public domain to argue that disclosure was in the public interest, would render the personal data of everyone on the register that bit more vulnerable than perhaps they would have been, for the reasons that I gave in respect of the other amendment. We want to ensure that people know they are working in a secure environment and we want them to take great care. Of course, the effect of this amendment could be that they could put information in the public domain and claim the public interest defence, but the damage would have been done and the individual on the receiving end would have suffered harm and damage as a result of it.

I understand why the hon. Member for Newark tabled the amendment, but, as I said, we do not believe it is necessary. The safeguards are already in place to ensure that people can invoke a defence should there be a disclosure, accidental or otherwise. For those reasons, I ask him to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

The hon. Member for Colne Valley (Kali Mountford) made an eloquent point and made it extremely well. I am still rocking from the effects of the Under-Secretary’s comments on amendment No. 101. In the cloud of semi-comprehension that he induced, I believe that our discussions have been useful. I take the point about the defence in subsection (4). Therefore, on the basis of the clear explanation that I have received and in the spirit in which it was offered, I beg to ask leave to withdraw the amendment.

Clause 30 - Providing false information

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 104, in clause 30, page 26, line 25, leave out from ‘false’ to end of line 26.

We can see from the clause that a person is guilty of an offence if he provides information that he knows or believes to be false, or if he is reckless as to whether it is false,

“(a)for the purpose of securing the making or modification of an entry in the Register;

(b)in confirming ... the contents of an entry in the Register; or

(c)for the purpose of obtaining for himself or another the issue or modification of an ID card.”

We come again to my favourite word. If the Minister likes the expression “rolling out”, I enjoy the expressions “modification” and “modified”. It is interesting that we are discussing the modification of an entry in the register, which I accept is a proper use of the word within the context of an Act of Parliament. The Government sought to persuade us last week that when they use the word “modify” in respect of a report or statutory instrument, they mean “amend”, and that we were being provided in the earlier clauses with an opportunity to allow Parliament to amend secondary legislation. I do not know about that, bearing in mind how they use “modification” throughout the subsequent parts of the Bill, including clause 30.

However, I want to ask the Minister by means of amendment No. 104 whether I am right in thinking that the criminal law treats the reckless disregard of truth or falsity in exactly the same way that it treats the known falsity. If one knows that they are telling a lie, they will be treated in the same way as they would if they could not care less whether they were telling a lie. Is it therefore necessary to add

“or ... is reckless as to whether or not it is false”?

The new policy might be one of being super-abundantly clear in legislation that creates offences and that, for example, if information were laid against an individual who had done such a thing before magistrates, or an indictment were to be drawn against an individual before the Crown court, the Crown might wish to set out those two levels of knowledge as alternatives. It is important to be clear about the Government’s intentions before we allow the clause to stand part of the Bill.

Andy Burnham (Labour/Co-operative, Leigh)

The hon. and learned Gentleman knows more of criminal law than I do, but I hope to convince him that it was necessary to draft the clause in this way. He will know that recklessness—as an alternative to intention—is a common feature of the criminal law. A person acts recklessly if he is aware of a risk and, in the circumstances known to him, it would be unreasonable to take the risk. Having regard to the definition of “false” under clause 43, which includes

“any inaccuracy or omission that results in a tendency to mislead”,

it is clear that a person might be reckless as to the veracity of the information he is providing.

I can understand members of the Committee being concerned to ensure that those who mistakenly provide false information, or even perhaps negligently provide false information, are not criminalised by the clause. I can give the hon. and learned Gentleman an assurance that such people will not be criminalised. That is not our intention. However, he will know that recklessness is a higher test than a mistake or negligence and, in my view, reflects a culpability that should be criminalised, given that we all want the register to be maintained to the highest possible standards.

While prosecutions for recklessly providing false information might be few and far between, it is right that the option should be left open to prosecutors and juries. It goes almost without saying that the effect on the accuracy of the register will be the same, regardless of whether a person intended to provide false information or was reckless in providing false information.

The hon. and learned Gentleman asked whether the term “reckless” is strictly necessary, and I hope I have explained why it is. We must also be explicit about the fact that there are alternative states of mind—so I am told—such as knowing information to be false, believing it to be false or being aware that it might be false. However, taking the risk is reckless. There are obviously gradations of being reckless. The clause has been drafted in this way to allow the courts to have regard to all the possibilities for someone providing false information.

I am not an expert, but I gather than recklessness is a common ingredient in criminal offences. It was recently endorsed by the House of Lords in a case in which a previous House of Lords decision was overruled. As a result, recklessness is now subject to a subjective, not an objective, test. The key question is whether the defendant himself appreciated the risk he was taking, not whether the reasonable man would or would not. I hope that means something to the hon. and learned Gentleman.

For the reasons I have outlined, we believe it important to maintain under the Bill the fact that recklessness is a common alternative in the criminal law to intention. It is of course important that people who apply to join the register do so knowing the risks of failure to provide information that is secure. The recklessness test is a higher test than simply making a mistake or being a bit negligent in terms of the information provided. That, I hope, captures what the hon. and learned Gentleman seeks. We need to keep the Bill as drafted. With that in mind, I ask him to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

We are talking about the state of mind of the person who provides the false information. A state of mind is a fact. It is usually to be inferred from what someone says or does or knows. I know the difference between negligence and recklessness. I wanted to know whether, for the purposes of the criminal law, there is a difference in this case between recklessness and deliberate behaviour. I think the Under-Secretary has persuaded me that what the Government intend is in line with the current state of the criminal law.

Andy Burnham (Labour/Co-operative, Leigh)

If it will help, I shall repeat the point. Deliberate behaviour is obviously covered by the intention to supply false information. That is the deliberate act. Recklessness is where people provide information knowingly, rather than mistakenly or negligently. They know the risks involved in doing so. There is a difference. Obviously the intent is within the Bill. Recklessness, being a higher test than negligence or anything else, is also in the Bill. I think that clarifies the point, or at least I hope it does.

Edward Garnier (Conservative, Harborough)

I am grateful to the Under-Secretary for that intervention. There are occasions when further elaboration leads to greater confusion, rather than greater certainty. To prevent the Bill from getting more rather than less confused, I will stop this conversation. I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 105, in clause 30, page 26, line 29, leave out “two years” and insert “one year”.

Roger Gale (Conservative, North Thanet)

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

No. 106, in clause 30, page 26, line 31, leave out “twelve” and insert “six”.

No. 108, in clause 31, page 27, line 34, leave out “twelve” and insert “six”.

Edward Garnier (Conservative, Harborough)

We had this discussion in relation to other offences earlier in the Bill and it is about the length or the quantity of penalty that should apply to someone who provides false information whether deliberately or recklessly, but certainly not negligently. I simply want the Government to justify the two-year prison sentence in view of the 12-month prison sentence available under clause 31(7). It is up to the Government to discharge the burden of proof here, and I look forward to hearing them do so.

Andy Burnham (Labour/Co-operative, Leigh)

As the hon. and learned Gentleman explained, the amendment would reduce the maximum penalty for providing false information from two years to one year. We take the view that a one-year maximum sentence would not reflect the seriousness of the offence. The two-year maximum sentence is consistent with the broadly analogous offence of possessing false documents, which we discussed in relation to clause 27 and which also attracted a sentence of two years. The offence of unauthorised disclosure of information from the register also attracts a maximum penalty of two years.

We believe that there is some consistency in what we are arguing. The stronger sentence is designed to reflect the seriousness with which we consider this and the importance of the integrity of the register.

As we discussed in relation to the magistrates courts, the Bill provides that on summary conviction the maximum penalty is 12 months’ imprisonment. Until the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to 12 months is to be read as a reference to six months. The amendment would amend that to six months. It is essentially the same amendment as was tabled in relation to clause 27 for the offence of possession of false documents. As I said, we will resist this amendment too, because we want the courts to have exactly the same powers under that Act in respect of the offences listed in the Bill as they have with respect to other offences. The amendment would limit their powers when they had a broader power across the piece.

I see no need to detain the Committee further. Given that we have been over this ground, I hope the hon. and learned Gentleman will withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I will withdraw the amendment, but we might need to return to the issue. In the meanwhile, anyone who wants to provide false information, be it recklessly or deliberately, had better travel to Scotland or Northern Ireland to do so. I beg to ask leave to withdraw the amendment.