(13 years, 6 months ago)
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The Deputy Chairman of Committees (Viscount Ullswater)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 6 : Possession of false identity documents etc without reasonable excuse
Amendment 13
Baroness Hamwee
Baroness Hamwee
I have Amendments 13 and 15 in this group, which also contains Amendments 14 and 16 in the name of my noble friend Lord Phillips. Amendment 13 is in my name and that of the noble Earl, Lord Erroll, who has asked me to say that he is sorry that he cannot be here this afternoon and that he very much supports the amendment, which in a way is a little embarrassing for me, as this is only a probing amendment, as indeed are all my amendments this afternoon.
Amendment 13 would insert the words “knowingly and” before “without reasonable excuse” in Clause 6(1). On the first day of Committee, the noble Lord, Lord Brooke, took us into some Latin terminology and I suppose that I shall, too, in asking whether mens rea—a guilty mind—is included in Clause 6(1). It is not obvious that it is covered by the phrase “without reasonable excuse” but, as the clause creates an offence, the “knowingly” aspect may well be imported in any event.
Amendment 15 would remove paragraphs (e) and (f) from Clause 7(1). It enables me to ask the Minister whether offences already exist relating to the misuse of driving licences. It struck me as odd to think that such offences came into effect only with the 2006 Act, so I would be interested to hear why it is necessary to refer to them at this point. I beg to move.
Lord Phillips of Sudbury
My Lords, the other two amendments in this group, Amendments 14 and 16, are in my name. I reiterate what my noble friend said about the noble Earl, Lord Erroll, who has put his name to both my amendments.
The purpose of Amendment 14 is to get on record—this may help those who have to interpret the statute—an explanation of the difference between Clause 6(1)(a), which my amendment would delete, and Clause 4(1)(a). If the Minister could explain the intended difference between the offences laid out in those two paragraphs, that would be extremely helpful, as they are close in wording, albeit with different conditions. Amendment 14 is truly a probing amendment.
Amendment 16 relates to Clause 8, which is headed, “Meaning of ‘personal information’”. The phrase “personal information” is used in Clauses 4 and 5. My amendment seeks to clarify paragraph (l) of Clause 8(1). I ask the Committee to humour my error in framing the amendment. Its first word, “or”, is redundant and my amendment should therefore read,
“in relation to any identity documents”.
The paragraph, as it stands, refers only to “documents”, not “identity documents”, which my amendment does. The term “identity document” is defined in Clause 7, but I am concerned that the paragraph could refer to, for example, a rating return, a television licence or any one of many other documents which identify the person to whom they relate and which contain numbers allocated to person A. I should be grateful if the Minister could say whether I am right or wrong in seeking to confine the personal information defined in paragraph (l) to that which relates only to identity documents, as defined in Clause 7.
The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, I am not sure as to whether I am lost. Let me try to explain the differences. One of the difficulties that noble Lords are having relates to whether there is a difference between Clauses 4 and 6, to which my noble friend Lord Phillips referred. Clause 4(1)(a) requires proof of improper intention and so requires proof that a person has used a document or has allowed it to be used by another person. On the other hand, Clause 6(1)(a) requires only proof of possession of such a document. There is a difference between having something in your hand and having it in your hand when someone else has knowingly permitted you to use it wrongly. These clauses are different in their purpose.
More generally, I confess that I am concerned about the amendments, which are intended to bring greater clarity to the offences that are being re-enacted. I remind noble Lords that these clauses are re-enacted from the Identity Cards Act 2006. We do not believe that the proposed amendments offer anything of substance and we are concerned that they may cause confusion at the level of investigation and enforcement. As I mentioned on Monday, the definitions of offences work well on a daily basis—there are more than 3,000 convictions a year for false applications and attempts to get false documents. That is clearly an important element in trying to prevent identity fraud. Therefore, we are anxious to keep the effectiveness of these provisions in the Act.
As we know, the Identity Cards Act is four years old and, as I mentioned previously, we want in the near future to review the existing offences under this Act, the Fraud Act 2006 and the 2001 legislation on fraud and counterfeiting. We want to ensure consistency between these pieces of legislation. The review will consider not only areas of overlap but what potential improvements can be made as part of the rationalisation work. As I mentioned in our discussion on Monday, we would welcome the views of noble Lords on that when the review work is completed. As things stand, we would like to transpose—the transposition would be direct and unaltered—the existing clauses in the previous Act. We do not want to start altering them now, because we will be carrying out a more extensive and substantive review in a short while.
The noble Lord also asked about the definition of “personal information”, which is relevant to the offences set out in Clauses 4 and 5. As drafted, included within the definition of personal information is information about numbers allocated to a person for identification purposes and information about documents to which the numbers relate. For example, this could include the number of a departmental pass or the fact that the number related to a pass issued by a particular department. If you suspect that someone is trying to assume another person’s identity, that kind of information would be helpful to them and they would be all the more likely to use a guise of that kind given their knowledge of the document to which it relates.
The link between the number and the document would be lost by the wording of the amendment because the amendment would bring within the definition of personal information,
“information in relation to any identity documents”.
We are not clear about what is intended or to what extent the amendment adds to the matters set out in paragraphs (a) to (k) in Clause 8(1).
Lord Phillips of Sudbury
The Minister mentioned that a departmental pass would be a document under this paragraph. What about a television licence or a rating demand, both of which have specific numbers and relate to a particular individual? Would they be documents within this paragraph? It may be unfair to ask the noble Baroness that on the hoof—in fact, it is unfair—and I would be content to hear the answer later. But, no, here comes an answer. This is Roy Rogers at his best.
Baroness Neville-Jones
The advice that I am getting is that that would not be the case because a TV licence or similar document does not identify the individual but relates to them. That is right. You get back a receipt for the money that you have paid but it does not verify in any way the identity of the person who has paid the bill.
Lord Maxton
Perhaps I may briefly clarify that. A TV licence does not relate to an individual; it relates to the property to which it applies.
Lord Phillips of Sudbury
It would seem that I have given a bad example. Does it not have the name of the licence holder on it?
Lord Phillips of Sudbury
Right. It therefore identifies that person and there is a number in relation to it.
Lord Hunt of Kings Heath
Before the noble Baroness agonises over whether to withdraw the amendment, perhaps I may ask the Minister about the review. Will it be a departmental review or will it be a more public review? Can she say something about its timing?
Baroness Neville-Jones
If you are going to do a review as extensive as the one proposed, it will have to have external input. It would not be particularly valid unless we were able to take advice on the kind of things on which I am offering to have consultation. I am told that the findings will be made public. We ought to make it known that we are conducting this review and we should be open to inputs from those who have interests in the matter.
Baroness Hamwee
I am not sure that I have worked out which part of the Minister’s answer related to my amendments. It all seemed to be addressed to my noble friend. I am not sure that the Minister dealt with Amendments 13 and 15. I could of course bring them back.
Baroness Neville-Jones
I apologise. The noble Baroness is absolutely right: I failed to deal with the issue. I am concerned that the effect of Amendment 13 is to shift the burden of proof. The prosecution in these circumstances would have to prove a couple of elements. It would have to prove, first, that the defendant knew that they were in possession and, secondly, that they had no reasonable excuse so to be. In Clause 4, which covers the possession of false identity documents with improper intention, the burden of proof is on the prosecution. It must prove improper intention. I hope that that clarifies the difference between what is there at the moment and what I understand to be the effect of the change that would be made by the amendment.
Baroness Hamwee
In other words, one can commit an offence under Clause 6 without knowing that one is doing so. I do not mean not knowing about the law; it is not an excuse not to know what the law provides. In this case, do you not need to know, for instance, that an identity document in your possession is false or has been improperly obtained?
Baroness Hamwee
I think that I am grateful for that. I do not know whether there has been an answer on my Amendment 15. I had given notice that these were probing amendments and of what was behind them. My point was simply that it was interesting that offences had to be created in this way. I would have thought that there must be offences attached to the holding of driving licences quite separately from this.
Baroness Neville-Jones
It is not established that that is the case but I think that it is. We do not believe that the Act to which the noble Baroness refers covers driving licences. We would have to check this and provide a written answer. I suggest that we provide the noble Baroness with a more detailed answer on this between now and Report. To speed through this legislation, and in light of the fact that we will be conducting this review, I hope that noble Lords will agree not to press their amendments.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 17 is grouped with Amendment 18. Again, these are probing amendments and I hope that my questions will not cause too many anxieties. I know that there is an answer to the first one, which is to ask the Minister to explain the desirability of including a qualifying reference agency as one of the bodies in Clause 10(3). I have heard the reason informally but I think that it should be on the record.
Amendment 18 deals with the provision which allows the Secretary of State to retain information—in other words, not to have to comply with subsections (8) and (9) where he thinks that it is desirable to prevent or detect crime, or apprehend or prosecute offenders. Again, I should be grateful to hear a little more about, and to get on the record, the Government’s thinking on this.
It is clear from the debates in the House, particularly before the last election, that there is growing concern about provisions which allow the Secretary of State to take this sort of executive action, which one might think would require either an order or some judicial input. In debates in which I have taken part with regard to RIPA and parallel matters, noble Lords have suggested that magistrates should play a role because they can always grant applications when there is an urgency or a particular necessity, and that would provide some control over the Executive in a way that certainly colleagues across all sides of the House have thought would be proper in those situations. It seems that there should be justification for Clause 10. I beg to move.
Baroness Neville-Jones
My Lords, during the passage of the Bill in another place, the Government introduced an amended Clause 10, adding significant safeguards, and I think that it is entirely right to demand such safeguards. We specified in the Bill that data collected have to be destroyed within 28 days following the issuing of a passport unless—and this is obviously the whole point—they are retained to prevent, detect or investigate crime or prosecute offenders. My understanding is that the amendment would remove that provision, but I should like to put to the noble Baroness that it has to be recognised that an agency which is responsible for passports and civil registration should be in a position to retain information that is relevant to assisting in the pursuit of suspected or actual criminals.
I probed this issue myself to establish what the criterion for retention would be, to which I got the answer that it would indeed be “reasonable suspicion” for as long as was necessary in determining whether the suspicion would lead to a prosecution. Therefore, such retention is for a strictly limited time and for a strictly limited purpose. This has been put into the Bill so that the matter is quite obvious, and I hope that it removes all doubt about the extremely limited circumstances in which the Identity and Passport Service would be allowed to retain information. I suggest that this is really a safeguard and not a power.
The other point raised by the noble Baroness is the resort to credit reference agencies. In the process of issuing a passport, it is very important to be absolutely certain about the claims being made by the applicant. The IPS makes use of a credit reference agency because it provides the most up-to-date information on addresses and is able to provide a relevant historical perspective which is particularly useful during interviews. In the course of one’s application, one gives one’s assent to this being done. It is a part of ensuring that a British passport is a reliable document that meets the highest standards. It is a very important part of the verification process. The information is strictly limited and must be relevant to the application. It would be a bad idea to remove the ability of the IPS to maintain a high level of verification by excluding a resort to a verification process conducted by an agency which itself maintains high standards and which has become important to verification. External credit reference agencies can add to the range of agencies able to provide a high degree of security and verification in considering applications for passports. I hope that, on this basis, the noble Baroness will be willing to withdraw her amendment.
Baroness Hamwee
I am grateful for that answer. I recognise that Clause 10 is a recent addition to the Bill. I think that it was added without any debate in the Commons and so has not been looked at in detail previously. I guess that it indicates how old-fashioned I am that I feel slightly uncomfortable in thinking that a credit reference agency is more up to date and more accurate than a number of government departments.
Where is the accountability in subsection (10)? How can the public know how and when the power is being exercised? The provision seems to be entirely private in the way that it is drawn.
Baroness Neville-Jones
The noble Baroness asks a perfectly reasonable question to which I shall try to get her an answer. I share her feeling that one must have accountability and that one must be certain that, at the end of the process of determining whether there is prosecutable evidence, information is destroyed. Both these things need verification.
There are two government changes to Clause 10. The first inserts a time limit of 28 days and the second defines that the information used must be strictly relevant. It is all subject to the terms of data protection legislation. While we could not be expected to inform a suspect that information about them was being held, one can rely on the fact that use of the data and all the provisions governing their retention will be subject to the terms of the data protection legislation. So they are not exempt; you cannot just do your own thing under this legislation.
Lord Brett
I am fascinated by the idea that information from a private sector credit reference agency, whose staff are not vetted by anybody, is considered to be reliable and secure enough for us to see it as a key part of the provision of passports. Concern was rightly expressed during the passage of the 2006 Act about government security and the destruction of the information being held. The Bill states that the information will be destroyed within 28 days. Can the Minister go into more detail about what “destroyed” means? Does it simply mean wiping out the tape that holds the information? Does it mean a wider destruction of information? For example, every piece of information that is put on the record goes on the computer, which has a hard drive that retains it. The word “destruction” carries with it a fairly comprehensive meaning, but the reality is that 28 days is a short period of time. Can we have more of a flavour of what physically has to be destroyed?
Lord Hunt of Kings Heath
My Lords, perhaps before the Minister answers, I could just ask her about what it says at the top of page 6 of the Bill, in Clause 10(3)(i). Following my noble friend’s intervention on qualifying the credit reference agency, I notice that there is an open-ended paragraph that says,
“any other person specified for the purposes of this section by an order made by the Secretary of State”.
It would be helpful if the Minister could let me know either now or in writing what sort of “any other person” might be mentioned. There was a concern about the credit reference agency, but I would actually have a rather wider concern about the open-ended nature of that provision.
Lord Phillips of Sudbury
To follow on from what the noble Lord has just said, I think that is why he and I and the noble Lord, Lord Brett, had an amendment asking for some oversight of the process. This is a vulnerable clause which involves discretions, and it needs some sort of review process to ensure that what should be done is done.
Lord Hunt of Kings Heath
Can I respond to that, as we are in Committee? The noble Lord raises an important point. I have no objection whatever to the general principle behind Clause 10, which seems entirely sensible and in the public interest. It is simply a matter of ensuring that there is due process and accountability.
Baroness Hamwee
My Lords, I wondered whether to table an amendment probing paragraph (i), but since the provision would require an order, I thought that that was the inbuilt protection which subsection (10) seems not to have.
Baroness Neville-Jones
My Lords, several questions have been raised. It is indeed the case that the contract with Experian was inserted in this Bill. We are transposing it, as it was negotiated by the previous Government. I do not think that it is contrary at all to the public interest, as it is a very reputable agency and, without doubt, it provides up-to-date and accurate information in a way that financial credit reference agencies are liable to have that information, which may be less up to date in departments of government or other organisations.
Other points were raised about the power of the Secretary of State or,
“any other person specified for the purposes of this section by an order made by the Secretary of State”.
That should be related to the question of how such orders can be made, under Clause 11, of which subsection (3) states that it has to be by affirmative order. So there would indeed be opportunity for debate. I do not think that this power could conceivably be exercised on an arbitrary or unaccountable basis.
Lord Phillips of Sudbury
There is a difference in how the power is granted, and the Minister is quite right in saying that the affirmative order is protection enough. But there is the practical issue of how the order is implemented. That is where one needs to come back to this matter of some sort of independent review.
Baroness Neville-Jones
I take what the noble Lord says. We come back in all of this to the relationship between the Information Commissioner, the operation of these Acts and the assiduity with which the data protection provisions are applied. The Secretary of State is in discussion with the Information Commissioner about precisely these kinds of issues to ensure that there is proper internal accountability and that he is satisfied.
I was asked how we could be certain that these powers of retaining information could be properly held and used and about the power to exercise spot checks. The noble Lord, Lord Brett, also asked a question in relation to that. The other day, we debated the different powers that would be used for different parts of the operation of this Act. If I remember rightly, a procedure is laid out that applies particularly to the destruction of information that is not part of the register but connected to the applications that go to it. They are covered by a destruction process and that process would apply in this instance because it would be in connection with the application process.
The noble Lord, Lord Phillips, asked whether there could be judicial input. I understand that a requirement to attend a magistrates’ court on every occasion that a person is working for the IPS has suspicion—I am sorry, I cannot read this. What we appear to need to do is to ensure that there is operational capability to deal with suspected offenders. I am afraid that that is not an adequate answer and I will try to clarify it in a moment. I wonder whether any Members have any other comments that they want to make.
The Countess of Mar
I was going to apologise for holding up the Committee, but my intervention seems to be opportune. I am puzzled because Clause 10 is about verifying information provided with passport applications and we are provided with a whole list of people who can verify applications. Why then do we need paragraph (i)? If there has to be an order made by the Secretary of State, and if that has to be debated in both Houses of Parliament, it will take time to verify information. Surely not every one of the others listed has to verify information. Surely only one or two of those people would do so. Why go to the length of having an order debated in Parliament in order to verify information on a passport? Will it apply to the passport of one individual, or will it be a block verification order?
Lord Phillips of Sudbury
I think that the point of this is that, before the Secretary of State can start demanding verification information from people, there must be statutory authority and that Clause 10(3)(i) is a longstop provision in case some other category of potential informants is thought by the Secretary of State to be necessary for the verification process. It seems logical, I must confess.
Baroness Hamwee
Will it be thought necessary or helpful if we find that a new organisation is holding information about citizens? I hope that we do not extend that category by much, if by anything at all.
Baroness Neville-Jones
I will endeavour to answer those two points. As regards the question posed by the noble Countess, Lady Mar, the distinction depends on the individual application and on the ability of the Identity and Passport Service to determine which source of information is best suited to the application. This is therefore permissive, rather than demanding that every single source should be applied to and used.
As regards the question posed by the noble Lord, Lord Phillips, on judicial input, I think that what we are saying here is that a requirement to attend a magistrates’ court on every occasion when a person working for the IPS has a suspicion that there is a problem is impractical. We need to be able to ensure that there is an operational capability to deal with suspected offenders. The provision as it stands replicates the power and ability that exist in the Data Protection Act, which also provides safeguards.
Baroness Hamwee
I think that it was my question, so I obviously I should go away and read the Data Protection Act. I have lost my bet because I thought that the debate would be over in about three minutes, but it has taken more than 30 minutes. I beg leave to withdraw the amendment.