Protection of Freedoms Bill

Earl of Erroll Excerpts

Tuesday 29th November 2011 Lords Chamber

[Lord Dear]

My Lords, we have discussed the rapid advances in DNA technology, but a fact that noble Lords may wish to take note of is that we are literally on the brink of a breakthrough in DNA analysis whereby, although the same sample being tested in the laboratory does not produce a hit on the database, it will nevertheless produce a pretty good description of the person who has given the sample. That will move the debate into a whole new area. I say that to put the record straight on just how fast databases are moving forward.

There is no doubt that if legislated for as we are considering, DNA technology will undoubtedly bring some convictions from cold case reviews. Indeed, that has already been mentioned from the Cross Benches. However, I have to say that, as a proportion of the total number of cases dealt with and convictions brought each year, the number will be relatively very small. Undoubtedly these reviews will frequently focus on serious cases involving rape or violence where the victim has suffered enormous trauma.

Having concluded my brief opening remarks, I have little else to say other than that I support the stance taken by the noble Lord, Lord Phillips of Sudbury. There has been far too much intervention in the privacy of the individual. We are currently reading in the newspapers about the conduct of the Leveson inquiry, which is yet another example of possible intervention in another sphere. That thrust of the interventionist state into our lives is something that this Bill seeks to reverse. Although this is an emotional issue, it raises great interest in the criminal justice system and in my former service, the police service. I shall make very few new friends in the service when I say that I believe that the safeguards proposed by the Government in trying to search for this balance are appropriate. I therefore support what the noble Lord, Lord Phillips, has said as well as the general thrust of this Bill.

[The Earl of Erroll]

My Lords, I associate myself with the comments of my noble friend Lord Dear and the noble Lord, Lord Phillips of Sudbury. Certain things can go wrong all too easily. DNA is not a straight yes/no; at the end of the day, if something is done in a laboratory, you are talking about an analogue match that is reduced to certain points. We have seen sometimes the misinterpretation of fingerprints. When a computer has reduced it to X points, it is not necessarily a true match. There have been miscarriages of justice as a result. People have refused to admit mistakes later because of the tendency of the system to try to cover up its mistakes for the greater good, in order not to discredit something that is widely accepted as evidence.

I am also worried that, if DNA exists and is associated with a case, you use it to try to prove some guilt. You do not know how it got there. I might have tried on a jersey in a department store and left a couple of hairs on it. It might later have been bought by someone else and the knife that went into the person might have carried one of my hairs inside the wound. With our DNA techniques, it could be deduced that I was the person who was at the place in question—you do not know

The trouble is that, because we have an adversarial system, we do not seek to find the truth in our courts; we see who has got the best lawyers to discredit the evidence on the other side. That can be dangerous sometimes with things such as DNA, which is fairly new. We have widely different quoted figures for what an exact match is and for the probability of a match that do not take into account laboratory accuracy. We need to think about exactly how accurate it really is. You also get criminal seeding of sites, which has been going on for a long time—taking ashtrays from pubs and leaving DNA evidence elsewhere to sow false things.

What worries me, finally, is what we saw happen with RIPA—that is, function creep. This will start off in the serious crime arena and then get extended, because it is an easy way to find who was where when or who handled what. We have to be very careful about making sure that that does not happen if we are going to retain DNA as evidence. That is why I approve of the Government’s stand and of what the noble Lord, Lord Phillips, said.

We seem to treat very lightly the fact that someone should be arrested. Actually, that goes on your record and it stays there even if you are never then prosecuted or a charge is not laid properly. The fact that you have been arrested will disbar you from all sorts of things. A simple example is the American visa waiver scheme. I am fairly certain that you cannot get a US visa waiver if you have been arrested. For some people, there is no smoke without fire. We have to be very careful before thinking that just an arrest is okay and that it is all forgotten in the wash—it is not.

[Lord Macdonald of River Glaven]

My Lords, this is a difficult and sensitive issue, and I have great sympathy with what the noble and learned Lord, Lord Goldsmith, said a moment ago. When he was Attorney-General and I was Director of Public Prosecutions, we often saw the result of DNA evidence in successful prosecutions. Nobody for one moment would underestimate, in spite of what has been said recently, the importance and the potency of that evidence, particularly in cold-case reviews.

Nevertheless, I am driven to support the Government’s position on this amendment, largely because of the sentiment that was expressed by the noble Lord, Lord Campbell-Savours. The rational and honest conclusion of the previous Government’s policy was a national DNA database. The policy was discriminatory in a sense that has not been addressed so far in this debate. Everybody knows that more young black men than young white men are arrested on the streets of our cities by proportion of population, and therefore more are swabbed. Therefore, a database that was growing as that one was, uncontrolled by any process of anti-discrimination, was inherently dangerous.

The safe process, if the Government had wanted to go down that road, as was once explained very eloquently by Lord Justice Sedley on the “Today” programme, was to institute a national DNA database. That was the logical and only fair extension of the previous Government’s policy. I cannot support the concept of a national DNA database. It seems an inherently totalitarian concept. The idea that newborn babies would be separated from their mothers in our hospitals to be swabbed before being returned for suckling, or however the process is conducted, seems deeply totalitarian and unacceptable.

The Scots have got it about right. These are questions of balance. Of course the position of victims is critical, but we also have to develop a system which achieves a balance between justice for victims and justice for defendants in a free society in which the Government play an appropriate and not overly intrusive role in people’s lives.

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[The Earl of Erroll]

I am quite intrigued by this. The police have a policy in some cases of arrest first and ask questions later, particularly when householders are defending their property, and so on. These people will therefore effectively be regarded in perpetuity—or at least for as long as they live—as having behaved undesirably, even though they have never been in front of a judge or the courts and we should therefore deem them to be innocent. I am worried by the attitude that that should stay on file. I fully realise that we must watch out for cases such as that of Huntley, but they are surely dealt with by the other provisions, whereby you are allowed to retain the records in certain circumstances.

[Lord Henley]

My Lords, again I repeat the word “balance”. It is a question of balance as to what is appropriate. Again I stress that it is a matter of fact, referring to the noble Earl’s example, that that person has been arrested. He might not have been appropriately arrested and the noble Earl might feel that that should not have happened. However, the simple fact is that he was arrested and there are occasions when keeping that information may be of some use.

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Moved by

[The Earl of Erroll]

14: After Clause 4, insert the following new Clause—
“Privacy Commissioner
(1) The Secretary of State shall appoint a Commissioner to be known as the Privacy Commissioner (referred to in this section as “the Commissioner”).
(2) It shall be the duty of the Commissioner to promote respect for individual privacy.
(3) The Commissioner shall have all the duties and functions set out in—
(a) section 51 of the Data Protection Act 1998 (Data Protection Commissioner),(b) section 57 of the Regulation of Investigatory Powers Act 2000 (Interception of Communications Commissioner),(c) section 91 of the Police Act 1997 and section 62 of the Regulation of Investigatory Powers Act 2000 (Chief Surveillance Commissioner),(d) section 20 of this Act (Commissioner for the Retention and Use of Biometric Material),(e) section 34 of this Act (Surveillance Camera Commissioner).(4) The Commissioner shall have all the powers which attach to the offices set out in subsection (3).
(5) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about any matter within the scope of his functions under this Act, and may give advice to any person as to any of those matters.
(6) Any reference in any enactment, instrument or other document to a person carrying out the duties and functions set out in subsection (3) shall be construed, in relation to any time after the commencement of this section, as a reference to the Commissioner.
(7) Any appointment made to any of the offices set out in subsection (3) is hereby terminated.”

[The Earl of Erroll]

My Lords, this amendment probes an idea. I am afraid that it was borrowed from one proposed in another place and, although it is not perfect, it will do just to sound out the concept and idea. I think that that is very important.

I spoke along these lines a long time ago in a debate on the report of the Science and Technology Committee on personal internet security, on 10 October 2008 in col. 467, if anyone is interested enough to look it up. We are getting a plethora of commissioners, with five of them looking at different aspects of information privacy, so there is a huge opportunity for things to fall between the cracks when there is no overlap—or there is an overlap, and nobody knows whose jurisdiction it falls within. Every time we have another thing, we invent another commissioner, and that concerns me. We are not taking an overall overview approach to this issue. Also, as new things emerge, where do you fit them in? Which commissioner do you fit them with, or do you invent a new commissioner each time?

The second challenge that I had was with the logical difficulty of a commissioner reporting back through the very person on whom he is reporting—because most of them, except for the Information Commissioner, report to the Secretary of State and on things that the Secretary of State’s department is doing. The Secretary of State has the right to edit the report before it goes public, in the public interest, which can mean almost anything. So I am challenged by that idea. The reason why I like the set-up for the Information Commissioner under the Data Protection Act is because that commissioner reports to Parliament and is appointed by Her Majesty using letters patent. Therefore, that commissioner reports directly to us. On the other hand, there is a challenge for the Information Commissioner as a single person. For example, when that commissioner had to criticise Parliament over expenses, I know that the previous Information Commissioner, Richard Thomas, felt very exposed as a single person; some complaints were aimed very personally at him. So at that point, I thought that maybe we should have an authority—more of a group of people. So I would rather draw all these commissioners into one personal information protection authority, or PIPA, which would be answerable to Parliament, not through the Secretary of State. Philosophically, in a democracy, that would be a far better way in which to organise it all. Anything new could go into that; they could work out whose responsibility the different bits were. Some of them would have a very high security classification, as some of the aspects for the Surveillance Commissioner have to have.

I am promoting this, hoping that it will find favour, but as usual I expect that the Civil Service would prefer to retain control over their commissioners and the people reporting on them. I think that that is unfortunate. One reason for choosing PIPA is that you have to remember that he who pays the piper calls the tune.

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[Baroness Stowell of Beeston]

My Lords, as the noble Earl, Lord Erroll, has explained, this proposed new clause seeks to combine a number of distinct statutory commissioners into a single privacy commissioner. As the noble Earl predicted, I am afraid that the Government are not persuaded that any benefits which may arise from such a merger would offset the disadvantages. Each of the five commissioners listed in subsection (3) of the proposed new clause requires a high degree of knowledge of relevant legislation and procedures to operate in specialist and technical areas.

Before I explain why the Government propose to set up the commissioners in this way, I will address the issue of accountability, as it is one that my noble friend Lady Hamwee raised as well. The noble Earl suggested that his privacy commissioner should be directly accountable to Parliament. The existing commissioners are independent officeholders and there is no question that they discharge their functions without fear or favour. If there were a question of a conflict of interest—I do not accept that there is—it would apply equally to a situation where the privacy commissioner would be directly accountable to Parliament. Parliament is subject to the Data Protection Act and the Freedom of Information Act, and thus to the jurisdiction of the Information Commissioner, so a conflict of interest could equally arise if he reported directly to Parliament. The existing accountability arrangements work well and I see no reason to change them.

Going back to the five commissioners, there is no doubt that in some cases the work of the various commissioners can be related but, in each case, there remain specific and crucial differences where their work remains distinct. To roll up all of the functions of the various commissioners would be to risk watering down the skills and expertise that are brought to bear in each of the areas. Moreover, given the wide diversion of roles and responsibilities of the five commissioners listed in the proposed new clause, I am not convinced that it would be possible for a single individual to provide adequate oversight in any given area—a point which I think that my noble friend Lady Hamwee made.

If a privacy commissioner were to be appointed, I envisage that he or she would quickly need several deputy commissioners, or a large body of support staff, to oversee the specific areas currently overseen by separate individuals. This would create an unwieldy body which, in all probability, would have less influence and impact, compared with the existing commissioners operating in niche areas. We can take the Interception of Communications Commissioner as an example of the specialist knowledge required in this area. That commissioner provides oversight of the intelligence agencies and law enforcement authorities by keeping under review their use of interception powers and their powers to acquire communications data. The role is very specific and the commissioner’s powers to require disclosure by the intelligence agencies, and others, of highly classified information means that it is a highly sensitive post that could not be amalgamated with a range of other, unrelated commissioner functions.

That said, we fully accept that there is a need for these various officeholders to work closely together, and I assure your Lordships that this is already happening. The Public Bill Committee that considered this Bill in the other place heard testimony from the Information Commissioner and the interim CCTV regulator. Both commissioners were clear that where their functions touched on similar areas, they remain adept at establishing and maintaining effective working relationships, so that they can complement rather than duplicate the work of the other. I see no reason to doubt why this cannot continue to be the model in the future.

While there is certainly some common ground between the work of the new Surveillance Camera Commissioner and the Information Commissioner, there are also important differences. The Information Commissioner highlighted, in his evidence to the Public Bill Committee, that his consideration of CCTV is limited to the sphere of data protection and, as such, that his office is not concerned with the effective use of cameras. Indeed, the commissioner saw this separation of functions as advantageous, stating,

“if you are specifically identified as Mr Privacy and expected to come down on the privacy side all the time, it is difficult to make judgments about the release of official information”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 97.]

Furthermore, the noble Earl might remember—I know that he has a great deal of experience in this area—that public confidence in CCTV is driven by both the proportionality and the effectiveness of deployment. The public want, rightly, to see that when surveillance cameras are deployed they help to bring criminals to justice.

In that same evidence session, the deputy Information Commissioner stated that,

“if the cameras do not work, we are not concerned, because cameras that do not work cannot intrude on someone’s privacy and that is what our driver is”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 99.]

I would therefore be concerned about having all these functions under the umbrella of a privacy commissioner. It is important to note that the Information Commissioner plays a key role not only in making sure that personal data are properly protected but that information is freely available to the public in accordance with freedom of information legislation. A single privacy commissioner would undoubtedly tilt the overall balance of the role to the detriment of the Government’s objectives to promote openness and transparency.

In short, it is our view that the five commissioners that are the subject of the amendment all undertake sufficiently distinct roles to justify their separate identities. Where their roles interconnect, I am confident that they will, as now, work together effectively to ensure that they complement rather than duplicate each other’s work. We will of course keep the landscape of commissioners under review but, for the reasons that I have set out, I am not persuaded of the case for a single privacy commissioner. I hope that the noble Earl accepts these arguments and will be prepared to withdraw his amendment, but I am grateful to him for putting it forward in order for us to discuss these matters.

[The Earl of Erroll]

I thank the Minister for that reply. In fact, what she described was rather what I ended up thinking. I have to admit that the amendment is defective in that it is not quite what I thought; it came quickly from someone else in order to solve the problem of putting something on paper. A single commissioner certainly could not do that job. I had envisaged someone at the top but then four or five departments underneath, some with much higher security ratings than others. It would just be a matter of co-ordination. From that point of view, I am glad to hear from the Minister that this is already happening with the collaboration between the commissioners on the ground. I hope that that will continue with the other commissioners if the structure stays separate. Bringing them together under a single overarching review may still possibly have advantages, but for the moment I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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[Baroness Royall of Blaisdon]

My Lords, I do not wish to return to our earlier discussion about the desirability of a voluntary or mandatory DNA database. However, I seek an assurance from the Minister, pursuant to the amendment of the noble Baroness, Lady Hamwee, that citizens will still be able to give their DNA voluntarily should they so wish. I know that my right honourable friend David Blunkett did so to show that the DNA database was not something to be feared and that there was no stigma related to it. Listening to the debates in the Chamber this afternoon, I feel even more strongly about the retention of DNA now than I did before. I might well go along to a police station and voluntarily give my DNA.

[The Earl of Erroll]

My Lords, this is quite an important principle. I notice that when it comes to cautions and reprimands, particularly reprimands, the police certainly do not warn youngsters of the full implications of accepting one. They do not realise that it is a plea of guilt to a criminal offence, which will stay on their record for certain purposes throughout their life. In fact, I have discovered that even some solicitors in the county courts do not realise that. Therefore, it is important that the police have a duty to advise people properly of the full implications of these things, partly so that the police realise them as well. I support this amendment.

[Lord Henley]

My Lords, I start with the point made by the noble Baroness, Lady Royall, about her desire to give DNA voluntarily. I take note of that. There is nothing to stop her. I was going to suggest that a special database could be set up, possibly named after her noble friend, the noble Lord, Lord Campbell-Savours, who seemed so keen on the idea. However, we will now have to call it the Baroness Royall database, and it can collect the DNA of all those members of the party opposite who want to hand it over voluntarily, and all those others who want to deal with the problem of stigma that the noble Lord, Lord Campbell-Savours, talked about earlier.

There is, however, a much more serious point here: the informed consent of individuals when they come to give their DNA. They might be doing so as part of some operation that the police are mounting where they deliberately want to exclude certain people from their investigations and, therefore, want to take fingerprints or DNA. It is right that we get the appropriate consent set out. That is why comprehensive guidance on the operation of these powers is set out in PACE Code of Practice D, which was revised in March this year to take account of the 2010 Act. It will need to be revised again once the Bill receives Royal Assent. Code D sets out the information that needs to be provided to a person before their fingerprints and/or DNA are taken. Annexe F of the code specifically sets out the requirements to be followed. Note for Guidance F1—to confuse noble Lords even further—underlines the importance of true informed consent. I shall read an extract from it to give assurance that appropriate guidance is offered. It will be revised in the appropriate manner after the passage of the Bill. It states:

“Fingerprints, footwear impressions and samples given voluntarily for the purposes of elimination play an important part in many police investigations. It is, therefore, important to make sure innocent volunteers are not deterred from participating and their consent to their fingerprints, footwear impressions and DNA being used for the purposes of a specific investigation is fully informed and voluntary. If the police or volunteer seek to have the fingerprints, footwear impressions or samples retained for use after the specific investigation ends, it is important the volunteer’s consent to this is also fully informed and voluntary”.

It is very important that the people covered by the new details in Clause 10, particularly new subsection (3), which refers to people who have,

“previously been convicted of a recordable offence”,

are properly informed, under the code of practice, of just what they are consenting to and for how long their DNA will be retained. Therefore, I think my noble friend will accept that her amendment is not necessary. We will make sure that the code of practice is revised in the appropriate manner and that will be done at an appropriate moment after the passage of the Bill. I hope therefore that she will feel able to withdraw her amendment.

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[Baroness Doocey]

My Lords, the Bill will place a large administrative and financial burden on all police forces. I believe that we need to monitor the impact of this, particularly in the current climate, when police budgets are under threat and facing severe cuts.

Each DNA profile and sample will need to be processed individually to ensure that they are deleted within the correct time parameters. Furthermore, this process must take into account any subsequent reoffending by the individual, as well as an application for extended retention.

The Metropolitan Police estimates that implementing the Bill will entail a one-off cost of £2.5 million, with ongoing costs of nearly half a million pounds a year. That is a huge sum of money when you consider how tight budgets are going to be, and it could pay for 10 police officers per year. Amendment 39 would ensure that the impact on the police service of the retention periods for fingerprints and DNA profiles and, in particular, the estimated costs of processing samples on an individual basis were reported back to Parliament.

An operational risk is also inherent in the complexity of the retention regime. While the Bill will in theory put in place mechanisms to ensure that DNA data are deleted at the right time, no system is perfect. If, as could well occur with the volumes involved, the deletion process were out of sync and not carried out at the appropriate time, DNA profiles which should have been deleted could remain on the database. If these profiles were then to be matched with the DNA from a crime scene or the victim of a serious crime, this evidence could not be used, since by law the profile should not have been there in the first place as it should not have been retained.

That is what happened in two cases, both of which necessitated changes to the Police and Criminal Evidence Act. In both, a DNA match was obtained but their profiles should already have been deleted from the DNA database. In the first case, which concerned a rape, the judge refused to admit the evidence and the prosecution was abandoned, and in the other case a conviction for murder was quashed by the Court of Appeal on the grounds that the DNA evidence should not have been admitted. The House of Lords subsequently ruled that it should be left to the discretion of the trial judge as to whether evidence in these circumstances should be admitted. We would not want history to repeat itself.

We therefore need some form of reassurance that we will not be put in the invidious position of perhaps identifying another rapist or a murderer but not being able to use the DNA match in evidence. I beg to move.

[The Earl of Erroll]

Does a case collapse just because one bit of evidence is not quite right? I cannot believe that that one bit of evidence would be the only thing to bring about a conviction, in which case why on earth do we let people off? That seems quite dotty to me, as a lay man, unless the whole thing hinged on that one bit of evidence, in which case there could be some ambiguity about it.

[Lord Henley]

I suppose that a case could collapse just because one bit of evidence fell apart, although in the main there would be other bits of evidence. However, the noble Earl, Lord Erroll, is right to make that point.

My noble friend, in moving the amendment, is obviously concerned about the costs of the Bill to the police and what that might do in diverting resources away from front-line policing. That has also been a concern of mine, and it is why, for example, I resisted an amendment from my noble friend Lady Hamwee suggesting that we should be looking at all the entries on the database on an annual basis. That certainly would have had major cost implications.

The reasoning behind my noble friend’s amendment is to ask the commissioner to look at a number of issues, including the cost of implementing the Government’s proposals. I can see why she wants to do that—I understand that she is a member of the GLA—particularly in view of the costs for the Metropolitan Police Authority, which, by virtue of its size, will have the largest single bill for implementing the proposals set out in this chapter.

I have to say to my noble friend that the Government have been working very closely with ACPO, the National Policing Improvement Agency and private sector forensic science providers to keep the cost of our proposals as low as possible. We published a very full impact assessment of these proposals in February this year, setting out a transition cost of just over £10 million. I appreciate that my noble friend Lady Hamwee had some criticisms of one part of the impact assessment, and I said that even Homer nods from time to time. I contrast that figure of £10 million with the previous Government’s impact assessment for, say, the provisions in the Crime and Security Act, which had an estimated transitional cost of over £50 million. Therefore, I think that the Committee will see that we have done much work in this area.

We are not convinced that the proposed post-implementation review by the new commissioner would add significantly to our understanding of this issue, and it would impose an additional bureaucratic burden not only on him but on hard-pressed police forces. I also say to my noble friend that I believe the commissioner’s first six months in office are going to be very busy indeed in terms of examining a number of applications for extended retention and setting out guidance under Clause 22 of the Bill, without giving the new officeholder the additional task of a financial review.

That said, Clause 20(6) confers on the commissioner a general function of keeping under review the retention and use of biometric material, so it would be within his remit to examine the impact of the retention periods provided for in the Bill without the constraints imposed by the amendment. I certainly reassure my noble friend that we take very seriously the issues highlighted by her amendment but we do not think that it is necessary.

My noble friend also touched on some of the issues relating to the batch processing of DNA samples, with which I think we dealt on an earlier amendment. Again, I reassure her that we think it will be physically impossible to relink anything held on a police file, including the original DNA sample barcode, with any information stored in a forensic laboratory. However, as I said, more work needs to be done in that area, and we will certainly do that in due course. I hope to be able to let the House know more about that at a later stage if at all possible.

Therefore, I hope that my noble friend will feel that there are sufficient protections in the Bill and that she will feel able to withdraw her amendment.

Passenger Name Records: EUC Report

Earl of Erroll Excerpts

Thursday 17th March 2011 Lords Chamber

[The Earl of Erroll]

My Lords, I should have put my name down to speak and I am sorry that I did not. Briefly, first, I want to make it clear that I support fully all efforts to catch criminals, especially terrorists, so my objective here is not about that. However, we must not lose sight of the dangers that may sometimes be contained within well meaning measures. In the real world, an EU directive does not protect you if there is a failure in the implementation of security measures, electronic or physical. That is the bottom line.

We have a database being built up here of sensitive information. You can easily have unintended connections made, as the noble Lord, Lord Hodgson, said, such as guilt by association. What happens if, by chance, you travelled a few times and coincidence came into effect and someone who might have the wrong associations travelled on a seat not far away from you? The next danger is with the credit cards. Criminals use stolen credit card details; it could be yours on someone else’s ticket. The actions with these data are therefore dangerous. There is also a danger to you. Critical financial information is kept in here, not just the billing address but your credit card details. It has everything you need to get someone’s credit card details in order to commit a fraud. If you used a debit card, they can empty your bank account so these data have to be kept extremely securely— at least to a standard such as the PCI-DSS, I hope, if not higher.

Another question is: who will have access to this information abroad and in the future? Will it be in European countries or worldwide? I can think of certain foreign countries which I would not like to have my information under any circumstances whatever. I can think of a couple of European countries where I would not be too happy with that, particularly considering things such as the European arrest warrant and the way that different crimes are created to have a different sense of gravity in different countries. The data are supposed to be retained for serious crimes, but what is a serious crime? Look at the mission creep that was behind RIPA and where we ended up with that. We have to start worrying about this. We all treat crimes in different ways, and this measure will soon creep elsewhere.

The bottom line is that if we were worried by the national identity register, why on earth are we not worried about this? This contains almost more information about you. There is a huge privacy issue here about the state looking at who you are travelling with, when and in what circumstances. Should it be snooping into some people’s private lives in that way? I have nothing to fear on that score, which is why I can stand up and say that, but some people would be very uncomfortable if they knew that conclusions were being made that could be brought up to silence them if things got awkward, particularly if foreign Governments had access to those data. I can see huge dangers here. There is also the question of business intelligence for foreign purposes. We should tread much more cautiously. You can write what you like on a bit of paper, but it is not worth anything in the real world.

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[Lord Hannay of Chiswick]

My Lords, I thank all those who participated in this brief debate, which has been extremely useful and has shown a wide measure of agreement. I thank the Minister for her response which, although it may have fallen a scintilla short of what I might have hoped for, nevertheless went quite a long way in the direction that your Lordships' committee wishes to go. I will add on a personal note that she and I, so many years ago that I would not dream of embarrassing anyone by saying how many, dealt with some of the more complex aspects of EU policy, mainly the EU budget. That budget pales into insignificance compared with this system of opt-outs and opt-ins.

Perhaps I may respond to one or two contributions. The noble Lord, Lord Hodgson of Astley Abbotts, raised the possibility that the directive asks for too much data. I do not have a strong view on that; we do not have to have a view to support the resolution. However, it is only by opting in that we can affect the amount of data that are collected. That is yet another reason to opt in. I and the committee agree with the noble Lord—and here I part company slightly with the Minister, although I accept absolutely her plea that we should help the Government in their negotiating position by standing firmly in favour of the inclusion of intra-EU flights—that this is not a make or break issue. It is not and should not be a sine qua non for opting in. That is a personal opinion. However, the committee does support, without ambiguity, the Government's desire to include intra-EU flights.

One problem that may come up—I hope it does not, and that the Minister is right in anticipating that real progress will be made at the April council to include intra-EU flights—is that it may not be possible by the time we have to take a decision on opting in to be quite sure one way or the other. However, on one thing we can be quite certain: if we opt out, intra-EU flights will not be included, although I do not want to go further into that. I certainly did not mean in the report to criticise the honourable Member in another place, Mr Brokenshire, who gave evidence to us. He gave excellent evidence on our internal security strategy report, for which we are extremely grateful. He was entirely courteous on this matter and there is no reproach. It is, I think, due to the parliamentary timetable that we have had to publish the report and bring this debate forward at a rather early stage in the three-month period. Therefore, it is not a criticism of him in any way.

My noble friend Lord Erroll seemed a little worried about all the details being taken of his credit cards and other things. Of course, the reality is that they are taken by the Government anyway. I think that his objection is mainly that some foreigners might read them. I am sorry—we are in the European Union. There are an awful lot of things that we share with members of the European Union and this will be one of them. In my view and in the view of my committee, it will strengthen the security of this country if we are able to do that. However, as I said, that information is already being collected here.

[The Earl of Erroll]

Perhaps I may make it clear that I am not worried about the information being shared with the European Union, as of course I give my credit card details on the internet to buy things in Europe. The challenge is in the number of times that it will be propagated around systems where we do not know what the security levels are, and the Government do not have a good track record of maintaining security databases. That is my concern.

[Lord Hannay of Chiswick]

That is a question to be directed firmly towards the Minister and not to me, so I shall not take it further.

The noble Lord, Lord Hunt of Kings Heath, was very helpful and supportive about the report and the recommendations. He rightly pointed out that there is considerable intrusion into personal data and personal security and so on. It is perhaps worth pointing out that one of the changes to which I did not refer at great length is that, as a result of the Lisbon treaty, the European Parliament has now become the co-legislator on this matter. The one thing we can be quite sure of is that the European Parliament is not going to let this bone go without giving it several bites and worrying at it a good deal. Therefore, I do not think that we are at the end of that story. I believe that the privacy aspects will get a very thorough airing in the negotiations between the Council on the one hand and the Parliament on the other. I am sorry to say it again but that is yet another reason why we need to be there, exercising some influence.

Finally, the Minister asked those of us who were involved in this matter whether we could take it up with the European Parliament. So far as I am concerned, I would willingly do so. I can see my chairman, my noble friend Lord Roper, nodding sagely to my left. We are going to Brussels next week to have our six-monthly meeting with British Members of the European Parliament, and we will certainly raise this issue with them. We will try to persuade them to fan out a bit and explain why the inclusion of intra-EU flights is going to help with security for all of us.

Immigration and Nationality (Fees) (No. 2) Regulations 2010

Earl of Erroll Excerpts

Wednesday 17th November 2010 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, the UK Border Agency currently spends over £2 billion to manage its borders and control migration. Over a third of its total running costs is recovered through fees on visas, nationality and immigration applications. The remaining costs are met by the UK taxpayer. Clearly there is a balance between these two things to which I shall return.

Earlier this year the Chancellor set out in his emergency Budget the position of the nation’s finances, which revealed the very difficult choices that had to be made by government departments. Of course the decision to increase the fees is relevant to the background and the economic situation which we were left by our predecessors. The decision has been taken to take the UK Border Agency into the new spending review period in a position where more is done to balance the costs of supporting the immigration system between those who use and benefit directly from it and the UK taxpayer, who is otherwise obliged to subsidise it.

The Home Office is making savings of £367 million this year. The proposals we are debating today form the other part of the equation—that is to say, seeking to increase fees paid by migrants and sponsors.

The regulations are made under Section 51 of the Immigration, Asylum and Nationality Act 2006 and are in accordance with the powers granted in Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, as amended by Section 20 of the UK Borders Act 2007. Under Section 42, the Secretary of State can set a fee for an application at a level that exceeds the administrative cost of determining the application. The way in which the legal powers are defined means that the Government must also specify fees for applications, processes and services that are provided at or below the administrative cost of determining the application, in separate regulations under the powers in Section 51 of the Immigration, Asylum and Nationality Act 2006. These regulations were laid before Parliament on 9 September 2010, are subject to the negative process and are not being debated. I recognise that having fees in two sets of regulations makes things a little complicated and I am happy to take the points that may be raised today on any of the fees proposals.

For these mid-year increases, the UK Border Agency has undertaken very careful consideration of the issues. These increases are made in line with the principle that the overall contribution of fee increases should be spread across all routes and be in line with our broader policy to align better our fees structure overseas with the one operating in the United Kingdom. Where there are greater increases to the fees on some routes than others, we have done so on the basis of the benefit to the migrant of a successful application. Examples of benefit vary from route to route but may include, for instance, access to the UK labour market, the right to stay here permanently or the right to vote.

These increases mean that the Government can hold other fees at existing levels, or increase them only by a comparatively small amount to help maintain our international competitiveness and in recognition of the importance of these routes to the UK economy. For example, the Government recognise the importance of keeping direct costs to sponsors under the points-based system as low as possible, particularly in the current economic climate. The fees for acting as a sponsor and the certificate of sponsorship fee have been held at the same level as previously, while maintaining existing concessions for small businesses, charities, education providers and the arts and entertainment sectors.

In the same spirit, we have managed to limit the tier 4 visa increase to just £21, which is for a visa being offered below cost. It is a very small proportion of the overall costs incurred by a tier 4 student coming to the UK to study, who will pay an average tuition fee of close to £10,000 a year in higher education. The visitor visa has been increased by only £2. Tourism is obviously important to the UK economy, but it is right that the migrants contribute towards the costs of the services they use and benefit from. However, we have still kept it down and the fee recovers only about half of the total administrative cost of the visa.

The House will, I hope, be pleased to hear that these proposals also introduce a fee exemption where a person makes an application for a nationality registration relying on Section 4C of the British Nationality Act 1981. This will align better the position of those applicants born to British mothers with that of applicants born to British fathers. This is a long-standing grievance, which I have shared, and was a matter of great interest to this House. I hope that fulfilment of that commitment made by the previous Government gives satisfaction today.

This Government are committed to sending a message overseas that we welcome legal migrants and that the UK is open for business. I believe, as the Government believe, that migration brings great benefits to the UK. However, I also believe that UK citizens and newcomers to this country wish to see an immigration system in place that is sustainable and stronger in the future, and is less subsidised by the average taxpayer. The immigration system costs money and, through these proposals, the Government are seeking today a greater contribution, as I say, from those who benefit most—a little more in line with the benefits on offer—so that the traveller and migrant meet a greater proportion of the costs of the system. As your Lordships can see, we have tried to keep down the cost for those who receive comparatively little—the tourist and, indeed, the student—and put the increases primarily in those areas where there is long-term benefit for individuals who come to work or to settle here. I beg to move.

[The Earl of Erroll]

My Lords, I rise to speak on the Motion as the regulations have a direct impact on a tiny company—on whose advisory board I sit—called Pingar UK, which is developing contextual search engine technology for a number of years. We are a subsidiary or offshoot of a New Zealand company that is funding the research and wanted to have a research establishment over here. This information is highly relevant as it will explain why this government policy is a disaster that will drive small companies such as Pingar offshore.

Tomorrow night, I will take part in a conference call with the New Zealand company in which we will almost certainly decide to move out of this country because of the immigration policy and the visa policy. A company employee took a degree at a Welsh university. He is a Hong Kong citizen. He obtained an 18-month postgraduate visa to do further development work, but that has expired. In the summer, we applied to get the visa extended, but we got caught up in the mish-mash of everything when the new immigration cap of 24,100 visas was suddenly introduced. We needed a certificate of sponsorship.

We got the certificate of sponsorship just in time, which was amazing since we employ hardly anyone over here and the chap in question will really be the first serious employee. That was the right thing to do. However, we were given a zero visa allocation. All the time that we put into the matter was completely wasted because we cannot sponsor him. We have now been told that, for £1,000, we might get a visa after all. The decision has been taken that, as a small business, we cannot afford to pay out £1,000 on a gamble. As another director of the company said, “It is a lottery”, so there is absolutely no point in doing it.

I am intrigued that the Explanatory Memorandum’s paragraph 11, “Regulating small business”, states:

“The legislation does not apply to small business”.

The very reason that we will have to relocate offshore is because, indirectly, the legislation does apply to small business. We will probably try to relocate the research arm in either Singapore or Hong Kong. Pingar is not the only company that I know of in this situation. Many people are considering relocation. I am afraid that the Government’s immigration policy is about the most stupid thing that they could have done for small business.

I have heard, and read in the papers, about the new entrepreneurship visas that are about to be issued. I would love to know how to get one for the chap, if we can. We do not have long to make up our mind. He is currently abroad as, under the law, he is required to be. In the next week or two, we have to decide where he should move to. I should be delighted to hear from the Minister how these new entrepreneurship visas will work. Why should we pay £1,000 to enter a lottery to see whether we can exist in this country?

[Lord Hunt of Kings Heath]

I thank the noble Baroness for her careful explanation of the regulations. The noble Earl, Lord Erroll, has taken us into a rather wider debate. His comments were very interesting and I hope that we will be able to hear more about that issue. There is great concern that the way in which the current cap is operating is doing real damage not just to British business and industry but to the arts and academia, as we have discussed in the House on several occasions in the past few weeks. I hope that we will receive an early announcement from the Government that they will look at the policy again and make it more flexible.

Having said that, we support the general principles that the noble Baroness has outlined. We recognise the challenge of balancing the burden of the administration of the system between the migrant and the taxpayer. My reading is that the burden on the migrant is increasing slightly, although not significantly. Perhaps the noble Baroness can confirm that. I should also be grateful if she could say what impact the fees increase is likely to have on the number of applications. Has an analysis been carried out of the possible impact on at least the main categories of application and whether there will be any unwelcome impact on regular migration when fees are increased? The Minister rightly mentioned some of the benefits of migration, which I must say was welcome.

Has an analysis been carried out of where there is clear benefit to our country from the skills that have been brought in and of our costs and prices as compared with those of other countries, such as Australia, European Union countries and the US? To extend the theme that was mentioned by the noble Earl, we need to be mindful that this country is a great global trading nation. We must be wary of any action that we take that would undermine the ability of UK companies to attract the best people. That has been one of our great strengths over the past 30 years, which it is important that the policy on immigration should not undermine. It is worrying to hear of small companies looking to, say, New Zealand for R&D purposes because of the constraints of the current system.

I would also be grateful if the Minister could confirm whether the increase in the cost of visas, particularly settlement visas, is part of a more general policy to bear down on numbers. Is the price increase part of a general policy of reducing net immigration? Perhaps the Minister would also refer to the matter of the migration impact fund, which was raised by my right honourable friend when the regulations were debated in a committee of the other place. I understand that the visa fee increases of the previous year took into account a £50 million contribution from migrants to that fund, which was intended to pay for projects in constituencies with a sudden increase in the number of immigrants. The Government have decided to abolish the fund, but the amount to cover the fund is staying within the visa fee. If the Minister could give us an explanation of that, it would be extremely welcome.

Will the Minister also provide a little more explanation of the alignment between fees in country and fees out of country, which she referred to in her introduction? Is the goal to have equalisation? Given the policy of looking at the proportion or cost of the administration of the fee, what measures will be put in place in that regard?

I note the significant increase in the fee for dependants. We do not oppose that, as there is a huge benefit to the dependant, but is that increase part of a deliberate policy to deter immigrants from bringing in dependants? Is it in line with the reductions of the rights of dependants, such as work rights, as part of the scheme, or is it just a method of raising extra resources when there is pressure on budgets?

Will the Minister also reassure me that no fees or charges will be imposed on Members of Parliament or Members of your Lordships' House who make inquiries about the progress of an immigration application, on behalf of a constituent, in the case of an MP, or of someone who has approached a Member of your Lordships' House, as happens from time to time?

I have no doubt that the noble Baroness will be able to respond to these questions, orally or in writing. She may take it that we support the general principles, although I share the noble Earl's concern about the wider aspects of the cap, which are doing great damage to British business at the moment.

Identity Documents Bill

Earl of Erroll Excerpts

Wednesday 17th November 2010 Lords Chamber

[The Earl of Erroll]

I spoke on this matter in Committee. I agree with the noble Lord, Lord Brett, because I see that the card could still have some use. Although the national identity register, which is what we all objected to, has been removed, having a bit of plastic as a travel document to get around Europe would have been useful and still might be. Some of the 12,000 people concerned bought the card for that. Like the noble and gallant Lord, Lord Craig, I certainly think that those people who thought that they had bought a plastic passport should be allowed to offset it against the cost of getting the more expensive passport that they will now require to go to Europe. For them, it was effectively a cheap way of getting a passport if you needed to travel to Europe.

We penalise insurance salesmen for being more honest than this. The Government are guilty of misselling. They went out and sold the card hard as having lots of benefits, and so people took it up. If you expect a member of the public, seven months ahead of the general election, to be able to predict its outcome, there are a lot of geniuses among the public whom we ought immediately to recruit to become pollsters. They may be all the people who did not buy the card. To me, it looks vindictive and nothing else. This matter could be a PR negative for the Government—a little spark that could catch the newspapers’ imagination. They will find someone who feels really hard done-by. It will get blown up; it will be in the Daily Mail, which will say that something must be done about it, but it will be too late by then.

I know that civil servants will produce reasons for the refund being difficult to administer et cetera. I cannot see the problem in saying, “The only people who get refunded are those who turn up with a card. If you hand in a card, you get 30 quid”. It would be as simple as that. That would not be very expensive to administer. If the Government wished to give the contract to one of the large systems integrators, however, they would end up with a bill for about £5 million, because it is their job to make sure that partners in America are well satisfied with lots of dosh. They are the people whom the Government will have to pay at the end of all this. They will have had unbreakable contracts, so they will have to be paid several million pounds for breaking the contract. A large slice of that will end up in American partners’ pockets. The poor old citizens of this country will get absolutely—I will use unparliamentary language if I go on.

I agree with the noble Lord, Lord Pannick, and said so in Committee, that this is an expropriation of property, or certainly property rights. Even if the card belongs to the Government and is non-transferable, that card gave you rights—that is what they sold it on. I am quite sure that that is expropriation and that there could be a claim under the ECHR. It will go on top of the Digital Economy Act, which we were advising the Government against the other day. So they will have a nice time in the courts.

If I had been lucky enough to get a card, I would have kept it as a collector’s item, but I know that a lot of people would not like to do so and would like their 30 quid back. They are better Scotsmen than me.

[Baroness Butler-Sloss]

My Lords, I share the disquiet of many who have already spoken. I urge the Government to think again about this.

--- Later in debate ---

[Baroness Neville-Jones]

My Lords, I recognise the strength of sentiment expressed on all sides of the House. If the House will permit, I shall explain why I cannot accept the amendment.

The Government set out at an early stage that they would not continue with this legislation and that they would repeal the Bill. That has been the long-standing position of the Government, well known in advance. It is fair to say that the Government made their position known on the fact that the ID cards would no longer have any validity.

[The Earl of Erroll]

Excuse me, but that was the opinion of the Opposition at the time, not of the Government.

[Baroness Neville-Jones]

The noble Earl is quite right. It has always been the intention, whether in opposition or in government, to scrap the ID cards scheme at the least possible extra cost to the taxpayer. Our primary purpose has been to prevent further expense being incurred when we can avoid it. We have no option but to pay compensation to some contractors because we are tied in by the contracts negotiated by our predecessors. That is a contractual agreement, and we are negotiating at the moment what that final sum should be. We do not agree that there is a contract between the Government and cardholders who received a service, nor do we believe that there is any expropriation of property or rights under it. The cardholders are not card-owners; the noble Lords who said that the card was government property were quite right to say so.

--- Later in debate ---

[Baroness Neville-Jones]

If it is a valid document, it can be used validly for identity. If it is an invalid or cancelled document, obviously it no longer has any legal status.

[The Earl of Erroll]

Under Clause 6 about the possession of false identity documents, does the ID card once it has been revoked become a false identity document? That was the point that the noble Lord was making. It is government property and it is no longer an identity document, so in using it you are probably using a false identity document.

[Baroness Neville-Jones]

You are certainly no longer using a valid identity document. It is not any longer valid in law.

The Identity and Passport Service has estimated that the cost of cancelling the ID cards scheme and the national identity register will be up to £5 million. This includes an estimated figure for compensation to the contractors, which I have just mentioned, destruction costs, staffing and other administrative matters. They are all necessary costs that we cannot avoid in abolishing the scheme. A refund scheme would add 10 per cent to that cost, which we do not consider to be a trivial addition.

Noble Lords have talked about principle. One can look at that in several ways. One of the principles that seems to be on offer this afternoon is that one set of taxpayers should refund another set of taxpayers. This does not seem to be a sensible arrangement. Some say that the sum is only about £400,000—one of the noble Lords mentioned that sum—the inference being that in the grand scheme of things this is entirely insignificant. Certainly, compared with the cost of the ID card scheme that has already been paid out—over £290 million—another half a million pounds might not seem significant. That is not, I am afraid, the attitude that the coalition Government take to public spending. We have demonstrated that we have a commitment to ensuring that unnecessary and unjustifiable expenditure is stopped and that we focus on delivering more for less. We are not therefore in a position to offer this refund.

--- Later in debate ---

[Baroness Neville-Jones]

My Lords, support for the Irish Government, the national interest, the economic prosperity of this country and the welfare of Ireland are quite different matters. I do not think that we can ignore the very low level of public interest in and reaction to the Government’s decision. The House should take note of that. I have tried to deal with compromises. They do not work; otherwise one might be able to do something in that respect.

I ought to deal with the points made by the noble Lord, Lord Brett. I apologise to him that he did not receive an answer earlier. We have not consulted the Government of Gibraltar, who issue their cards in a rather different way. The Identity and Passport Service is not able to answer that question directly. The UKBA is the agency which sees the documents of EU cardholders. We will have to get further information on that point, which I will endeavour to do for the noble Lord.

In light of the views that have been expressed in the House this afternoon, I propose to take this amendment away and consider it.

[The Earl of Erroll]

Before the noble Baroness sits down, will she guarantee to come back with an amendment along the lines of recompensing people? On two occasions the Government have promised to take a proposal of mine away—this Bill has only one more stage—but at Third Reading have weaselled out of it at the last minute. Under the rules governing Third Reading, we are not able to put down anything at that stage to ensure that the Government come back with something, so we need a binding commitment from the Government to come back with an amendment along the lines of this one. If the Government will not give such a commitment, we should not permit the amendment to be withdrawn.

[Lord Mackay of Clashfern]

I see the position in which my noble friend finds herself. I respectfully submit to the House that it would be perfectly reasonable for her to ask that this matter be postponed to Third Reading so that she has an opportunity of conveying to her colleagues—because the Government as a whole are involved here—the sentiments that have been very clearly expressed in your Lordships' House. She has explained the reasons for the Government's position. However, a great deal has been said here and I submit that the Government have an opportunity to reconsider. If the Opposition are anxious to achieve fairness and justice, I am sure that this is the correct course, rather than seeking to take the matter further at this juncture—if my noble friend is prepared to take this back, to have it considered by her colleagues in government and to return at Third Reading and tell us what the situation is.

--- Later in debate ---

[Lord Maxton]

My Lords, at Second Reading of this Bill, I suggested that, while at the moment an identity card would not help to stop fraud on the internet, it will come. There will eventually come a point when, in view of the rising number of people purchasing goods and services online, the banks and the people selling goods will insist that there is some form of identity involved in the transaction. Whether it will be putting a card into your computer or a camera that will show that you actually are the person, I do not know, but I would think the banks in particular will insist on this in the longer run, both for their own hole-in-the-wall cash machines and for buying online. The ID card, as it was originally proposed, if it had been made compulsory from the word go, as I wanted it to be, would have been one of the answers to that and would have saved the private sector very considerable sums of money in the long run.

[The Earl of Erroll]

My Lords, I fully understand the sentiment behind this, but I am not sure this is the best way to go. I do not think it is really the Home Office’s forte to produce such a report. I entirely agree with the noble Baroness, Lady Hamwee; there are a lot of lessons to be learnt and a lot of people studying this sort of thing. As for the figures used by the noble Lord, Lord Rosser—and taking the point just made about the banks—that is the whole point. People confuse theft of credit card details with identity theft. Identity theft is when someone’s identity is taken over and used to do many other things, such as entering into contracts, travelling across borders and perpetrating crimes. Nicking a credit card and its details is something completely different. Those provide the huge figures, and the people who can stop that are the banks and the credit card companies by increasing their security. They are always looking at this, and they are trading off between the losses they make on transactions where cards are not present, and the cost of additional security. We are seeing new security measures coming through, but it is not a government job. There is no point at which you would take a national identity card that is not designed for online transactions, and a credit card that at the moment is not designed for them, and hope that one is going to help with the other. Actually, the entire problem about security for the credit card is contained there, and the people know what to do about it. They are getting on with it rather slowly to my mind, but when the fraud figures get big enough they will do something about it. I agree there are lessons to be learnt, but I do not think it is an identity card lesson. There are some other lessons to be learnt, but I think that there are other bodies better qualified to do the job than the Home Office writing expensive reports.

[Baroness Neville-Jones]

My Lords, the amendment in the name of the noble Lord, Lord Rosser, raises two issues. He spoke to the first issue as regards combating identity fraud and the effect of the repeal. He did not really mention the second, which would require us to write reports on the operation of the identity card scheme. I will deal with both those matters because, if the amendment were accepted, they would be obligations on the Government.

I very much support the notion that what we do in government should be evidence-based, but I do not think that trying to draw lessons from a scheme of such narrow scope and numbers, as well as short duration, will help us a great deal in what are, without doubt, serious issues. One can draw a number of lessons about the operation of the scheme itself, but I do not know that they would cast much light of a general kind on how to operate identity schemes in the future. Frankly, the Government’s view is that this is not a worthwhile thing for us to try to do.

We entirely agree that combating fraud is a major issue. There is no argument between us on that. That is precisely why the Home Office is taking it very seriously in conjunction with other departments. The National Fraud Authority and the National Fraud Intelligence Bureau have, as I mentioned in Committee, produced a strategic threat assessment of the harm and the impact of identity fraud. I entirely agree with the noble Earl, Lord Erroll, that identity is an issue and we certainly will have to do work on identity authentication. That would have been the case even with the NIR.

These assessments are now being taken as the base for an action plan, which I also mentioned in Committee. I hope that the House will accept that it would not be sensible for us to publish the details of the action plan, which is designed to try to get at the root of those who are engaged in criminal and fraudulent activity. But I can assure the House that we are taking this issue seriously.

--- Later in debate ---

[Lord Maxton]

My Lords, the noble Lord who moved the amendment may be slightly surprised to know that I support it, but for reasons that are rather different from those that he put before the House. A friend of mine described the Bill as the King Canute Bill; in other words, it is doing away with something—identity cards—which, in a relatively short time, whatever Government are in power, will have to be reintroduced. That is almost inevitable. I would hope that an appointed independent person would give that recommendation to the Government of the day and say, “Sorry, we have got it wrong. It is time that we reintroduced ID cards”. I agree entirely with my friend’s view, except that poor old King Canute is the most maligned man in English history, because he never suggested that he could hold back the tide. What he said to his courtiers was, “I cannot hold back the tide”. I suppose that it is the first example of PR going badly wrong.

There will come a point where the need for smart card technology will become such that we will have to introduce an identity cards Bill. This amendment would at least allow an independent person to look at it and say, “Sorry, we’ve got it wrong. Let’s have another look. Let’s introduce ID cards”.

[The Earl of Erroll]

My Lords, if I had got my act together a bit more quickly, I would have added my name to the amendment, because it is very sensible. There are some residual powers in the Bill which we need to keep an eye on. Although an Information Commissioner exists, he does not have the power to march in and look at things unless there are complaints. He would also be overextended.

We need to look out for residual powers that could give rise to concern. They come in Clause 10. Subsections (8) and (9) sensibly state that certain information which is gathered to prove someone’s identity when a passport is being issued should be destroyed after 28 days. Given that the Government will destroy the information within 28 days, I am happy for them to consult other databases—I mentioned in Committee electricity bills, which is probably the quickest way of finding whether someone has changed address or where they really are. I have no problem with the Government doing that to verify a person’s identity for the purpose of producing a passport.

However, then we get to subsection (10), which is the good old catch-all. It says that the Government can retain the information beyond 28 days for the purpose of “preventing or detecting crime”—I remember this sort of wording in RIPA, which led to a lot of grief—and “apprehending and prosecuting offenders”. Well, that depends on how quickly they apprehend them again. We should have oversight by an outside commissioner who reports to Parliament and not by a Home Secretary, because this sort of thing can get out of hand and, later, suddenly rise up to bite a Government in the future. We have several commissioners doing this sort of job elsewhere in the security world. We either add it on to someone’s job or create another one, but it is sensible for protecting the public.

[Baroness Hamwee]

In Committee I raised the point on subsection (10) to which the noble Lord referred. Is it the noble Earl or the noble Lord?

[The Earl of Erroll]

My Lords, it is the noble Earl. It is very confusing. I am actually the Earl of Erroll, but we are in distinguished company as we have two Earls who have surnames as their titles—Earl Ferrers and Earl Attlee. However, I would still refer to them as the noble Earl, Lord Attlee, and the noble Earl, Lord Ferrers. Thank you very much for correcting the House on this.

--- Later in debate ---

[Noble Lords]

Hear, hear!

[The Earl of Erroll]

If noble Lords will indulge me for two seconds, the only person who is the exception here is the noble Duke, the Duke of Montrose. Otherwise, we are all Lords and Ladies. We are Peers, so socially we refer to each other as Lord and Lady. Even a Baroness is a Lady, and we put the true title in front.

[Lord Hunt of Kings Heath]

With the greatest respect to the noble Lord, the Earl Ferrers—

Identity Documents Bill

Earl of Erroll Excerpts

Monday 1st November 2010 Grand Committee

[Lord Brett]

My Lords, this amendment seeks to retain one part that is enshrined in the law of the 2006 Act; that is, the use of the identity card as a travel document. Identity cards are not a unique phenomena known only in the UK, although you might have thought that from some of the external non-parliamentary criticism some time ago. Across the whole of the European Union, they are the norm rather than the exception. All countries in the EU except Ireland and Denmark have them. Ironically, Denmark, although it does not have ID cards, maintains a national identity register. However, this amendment is solely about travel. This is an issue that caused no controversy whatever before the Bill was introduced, while it was being discussed or after it was passed.

Amendment 2 is simply a mechanism for achieving the aims of Amendment 1; namely, the right of the holders of ID cards to use them as travel documents for the duration of their validity. Given the lack of controversy over this aspect of the Identity Cards Act, there can be no ideological argument against retaining them. The case put forward in the other place for not retaining them was based on technical issues and, in particular, cost issues which, given the Government’s refusal even to offer refunds, must be the most relevant and pressing matter for them.

More than 13,000 ID cards were issued in the UK. However, these are not the only cards containing a UK emblem. The many British residents in Gibraltar are issued with ID cards which are accepted as valid travel documents throughout the EU and the EEA, which includes countries such as Switzerland. I understand that these are issued and maintained at relatively minimal cost. I should like to ask the Minister particularly whether the Government, through the Home Office or the IPS, have consulted the Government of Gibraltar on their experience of ID cards, the processes they use and the costs in this regard. In Europe, the use of ID cards as travel documents is not limited to Gibraltar. Germany, Sweden and a number of other countries, both EU member states and candidate member states, already use ID cards as travel documents.

Among the aggrieved citizens who have approached me and other Members of your Lordships’ House with concerns about being unable to use the ID card as a travel document are, in particular, elderly people who restrict their travel to Europe because of age and insurance issues and business people who frequently travel to Europe. For example, a gentleman from Kent has travelled to mainland Europe—as we used to call it—some 30 times since getting his ID card earlier this year. He values it very highly and does not like the idea of having to carry a passport, which will inevitably get damaged by constant use, while he can have an ID card that fits in his wallet.

For those reasons, and setting aside all the other arguments for or against ID cards, I believe that they should be retained for those who bought them as a valid, legal document. The issue is not one of ideology, and I do not believe that it can be one of cost. I hope the Government will look at the issue again with a view to extending the use of this part of the ID card as a travel document for those who bought them in the honest belief—without a particular view for or against ID cards as a security document—that they could be used as a travel document. I beg to move.

[The Earl of Erroll]

My Lords, I have added my name to Amendments 1 and 4 because, as I said on Second Reading, when we discussed this matter at length, it seemed a shame to throw out the one good bit of the scheme along with the bad bit. The bad bit comprises the national identity register, whereas having another bit of plastic with which to identify yourself is not a huge concern. As I said then—I may as well put this on record again—I should be very happy to see us have a plastic passport, as you might call it, comprising the photograph page of the passport with an identical chip in it. We are told that retaining this provision temporarily as a travel document for use in Europe would give rise to huge expense as whole sections of the national identity register would have to be preserved. I do not believe that that would be the case; I think the pudding is being over-egged here in order to make the case all one way.

I support Amendment 4 in preference to Amendment 2 because the latter seems to be rather all-embracing whereas Amendment 4 is concerned merely with the information that is relevant to a passport. That information would have to be retained for a passport anyway and would probably be sufficient to prove the authenticity of the card. I have not checked with my expert but I imagine that the card is very secure and that if you are in possession of the Government’s public key you can authenticate the card without having to have any of this background information off a database, and you can tell whether the card has been cloned or tampered with in any way. Therefore, I think we should do exactly as the noble Lord, Lord Brett, suggested and retain the card as a travel document. Perhaps in due course we could also have a convenient European travel card to go along with it, but we should retain the minimum of information that is required, if any.

[Lord Rosser]

My Lords, I support both the amendments in my noble friend’s name in this group and the related Amendment 4, to which I am one of the signatories. I thank the noble Earl, Lord Erroll, for also being a signatory to Amendment 4. On Second Reading, we heard the noble Earl’s views on the sense and convenience of continuing to use ID cards as travel documents in Europe, and he has re-emphasised those points today. We on these Benches share that view and the annoyance and frustration of those cardholders who, under the Bill, would be prevented from continuing to use their cards in this way. The amendments before us would enable existing ID cards to continue to be used as travel documents in Europe.

On Second Reading, having asserted that maintaining full-life validity of the existing ID cards would probably cost an extra £60 million to £80 million, which she considered to be unacceptably high, the Minister inferred that the alternative proposition of a refund of £30 to existing holders of the ID cards was unacceptable not because it was too much but because it was so trifling, since it was,

“rather less than probably most people pay for a monthly subscription to Sky”.—[Official Report, 18/10/2010; col. 742.]

That was an interesting phrase from the Minister, suggesting that Rupert Murdoch and his interests are never far from this Government’s thoughts.

ID cards were sold as documents that, among other things, would be valid as travel documents in Europe for 10 years. Those who bought the cards, planning to rely on them for future travel, will now have to spend additional money on obtaining a passport, or renewing it when it expires. Of the 12,000 to 13,000 individuals who bought ID cards, some did so because they only travel in Europe and never further afield, others because their passports were about to expire. Some bought ID cards because they were far more affordable than a full British passport. All these individuals have a right to feel cheated. They were sold a product—in this case, an identity card and its associated benefits—only to find, not that the terms of use are likely to be changed by the Government, but that the value and purpose of the document will be completely nullified without compensation. On the point of fairness, the Government's stance cannot be right. As the Minister, Mr Damian Green, eloquently put it in his impact assessment, there would be a reputational issue for the Government,

“in dealing with people who purchased a now-useless card in good faith”.

The Government's argument appears to be that because they said prior to the general election that they would scrap the ID card system, everyone should have known that, and it is their own fault if they bought one. However, the individuals concerned bought one from the Government.

--- Later in debate ---

At Second Reading the noble Baroness expressed the Government’s view that it is not necessary for the security of the British passport to progress to second-generation biometric data in these documents, a view that stands in contrast—

[The Earl of Erroll]

The biometric data held on identity cards are different from those held on passports, so that is not quite right.

[Lord Rosser]

If that is the case, I take the point made by the noble Earl, Lord Erroll. I think what he is saying is that he does not think it is relevant to the particular issue of the ID card continuing as a travel document, rather than that it is not relevant at all. If so, I accept what the noble Earl says.

The Government are clearly not too sure of the wisdom of their position, as the Minister implied at Second Reading when she said that she did not consider that there was a need to do this “as things stand”. But I hope that, in the light of that, the Minister will reflect hard on the amendment, which seeks to ensure that the identity card can continue to be used as a document for travel in Europe. The disregard now being shown for those who bought ID cards on the basis that they would be valid for a range of purposes, including travel in Europe, for 10 years, is unworthy of any democratic government. This group of amendments seeks to redress the situation by providing that the existing ID cards should remain valid as travel documents in Europe for 10 years and that existing ID card data should, subject to the agreement of the individual, be transferred to the passport database if the information on the national identity register is to be destroyed. The Government ought to be prepared to agree to these amendments and I hope that, on reflection, the Minister will indicate that that is now her position.

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[Baroness Neville-Jones]

My Lords, the noble Lord, Lord Rosser, has just raised a series of issues that are not covered by the amendments in this group, which I will cover when we come to the appropriate amendment. It is important to start our debate in Committee with this group of amendments because they go to the heart of the issues we have to deal with, and we need a debate on the underlying implications of what the opposition Benches are proposing. I owe it to the Committee to explain why, far from being simple, these amendments present a real difficulty.

Amendment 1 would remove the current status of the identity card as an identity document and instead it would become a simple plastic version of a passport. I have to say that if that had been the original intention of the identity card, matters might have been a great deal simpler. Instead, the previous Government indicated that ID cards were essential for security, necessary to prevent terrorism and crucial in detecting fraud. At Second Reading during the passage of the Bill in the other place, we were told that cancelling the ID card scheme would cause the end of civilisation as we know it. The current shadow Chancellor and then Home Secretary said at Second Reading of the Bill in the other place:

“All that we want to do is make it easier for banks, GPs and employers to verify someone's identity and thereby make it much more difficult for people to create multiple identities and commit identity fraud. That crime costs our economy £1.2 billion every year and has increased by 20% in the first quarter of this year alone. Combating identity fraud protects the security not just of individuals but of all of us collectively. Drug dealers, people traffickers and terrorists depend on access to false documents”.—[Official Report, Commons, 9/6/10; col. 358.]

We agree with a lot of the sentiments there; the issue is whether ID cards have performed any of those functions.

The amendment clearly recognises that the ID card was not that panacea. It is unfortunate that, after spending millions of pounds on a scheme which the public did not want, we now have, in effect, a credit-card-sized version of the passport for travel in Europe. That would be the effect.

I want to come back to that in a minute, but I want first to comment on the amendments to transfer the records of ID cardholders from the national identity register to the passport database. There are some problems. Those amendments depend on Amendment 1 being accepted, but the practical issues are these. The passport application and issuing process is governed by a fee structure which provides that the income generated from the fee can be spent only on passports. There is no provision which would allow the passport structure to expend resources, no matter how small, on other areas than passports. The Identity and Passport Service does not hold any other database, so unless the amendments are intended to suggest that a new one be established, it is not clear to me how the transfer of information could occur.

[The Earl of Erroll]

Is the passport defined as a paper document containing X number of pages, or could the general word passport include a bit of plastic?

[Baroness Neville-Jones]

It is defined as a travel document. The issue is what the passport database contains. It is able to hold early biographical information and a facial biometric. The NIR, the other database, is going to be destroyed. I can only assume that noble Lords are suggesting that a new database be set up, because the passport database cannot take this stuff. That would require a separate provision—statutory enactment—and resources.

Furthermore, the information held on ID cardholders includes fingerprints. Fingerprints are not held for passports, and the IPS does not have the capacity to store fingerprints, nor any intention to start taking fingerprints for passports, as we have indicated. The amendment fails to consider how the fingerprints would be stored. Perhaps it is not envisaged that fingerprints would be retained, but in that event, it is not clear whether that is an omission or whether it represents a change of policy on the part of noble Lords opposite concerning the need to take fingerprints.

[The Earl of Erroll]

I am sorry to interrupt yet again, but paragraph (a) in Amendment 4 states,

“which is relevant to an application by a person (“P”) for a passport”.

In other words, it would not include fingerprints or anything which is extraneous to a passport application. I have to admit that I did not draft the amendment, but, on reading it carefully, the reason that I backed it but not Amendment 2 was that Amendment 2 seemed to be a blanket provision for transfer, but Amendment 4 seems to provide for only those things, which would be very few things. It would be a minimal data transfer merely to facilitate the issuing of a passport.

[Baroness Neville-Jones]

Yes, but the fingerprint process is an integral part of the ID card process. The noble Earl is saying that we should now somehow start tweaking the data as we go through.

[The Earl of Erroll]

I envisaged that the amendment meant that the fingerprints go, everything on the NIR is scrapped and one or two things—which might be literally just the facial biometric—are transferred to the passport to save time. That is all.

[Lord Brett]

I seem to have caused part of this confusion with my amendment. As I understood during that brief period when I was the Minister responsible for identity cards, you have the information that is on the passport database and additional points that are on the national identity register. We are scrapping the national identity register, but we are told that virtually everyone who has an ID card is on the national passport database. So, on the national passport database we need to have an indication that some individuals have an ID card as well, as a travel document. To me, that seems to be the only information that needs to be transferred from the national identity register to the database for passports. That does not sound very resource-intensive or difficult in terms of legal base. I cannot see why any other information is required to be transferred if we are getting away from a register and back to just having a passport, albeit a plastic one.

--- Later in debate ---

[Lord Brett]

My previous confession about having read all three manifestos was somewhat of a wasted investment, given that after the weekend following the election, we had a coalition agreement. However, I recognised at Second Reading that one of the few things that appears in both the Liberal Democrat and the Conservative manifestos was the decision to scrap ID cards. I saw in neither manifesto a reference to a refund or non-refund. When I was, briefly, the Minister responsible for the launch of the scheme, I debated this with Mr Huhne of the Liberal Democrats on the radio, and while he talked about scrapping them, he was silent about the travel document. I was asked what would be the advantage of having one of these documents if the scheme were to be scrapped by the incoming party, and I said that at least they would have value for 10 years as a travel document. Mr Huhne chose not to contradict that and he certainly made no reference to refunds.

As the noble Lord, Lord Phillips, said, it is a question of fairness. In the other place, the Minister of State accepted that there were people who, in these straitened times, would have the hardship of having spent the £30. He did not go on to follow his logic, which is that, if you believe in fairness, you should restore that £30 to the individual.

Leaving aside all aspects of ideology, policy and security, I believe that the reputation of this Government—and the reputation of any democratic Government of this country, irrespective of party—is worth a lot more than £360,000. I hope that the Minister will take that on board.

[The Earl of Erroll]

My Lords, I did not add my name to the amendment because there was not room, but I spoke about this on Second Reading. It is absolute lunacy not to offer a refund. It could be optional, in which case, as I said, a lot of people might well then decide to keep the cards as a collector’s item and an investment for the future. The concept that we would have to spend £22 million refunding the money is, to my mind, dotty. The Government have clearly fallen into the hands of the large systems integrators again, who are siphoning off our taxpayers’ money to America. I would suggest that they deal with some British SMEs for a change, but unfortunately government procurement rules do not let us do that at the moment. That is just a quick side swipe.

Thinking about the statements of the noble Lord, Lord Phillips, about consumer protection, I thought that there was also provision under the ECHR whereby Governments could not expropriate private property without compensation. I suppose that the ID card is not people’s property, but presumably there is an issue because they paid for it and were expecting something in return. If it is expropriated without compensation, I should have thought that that might be an interesting case to go further up the line—there is nothing like stirring things up a bit.

I find amusing the concept that the general public are better than the weather forecasters, all the pundits and all the experts, and can predict the outcome of the next general election several months ahead. That is wonderful. I would love to know who those members of the public are. Then there is the idea that they could also predict the coalition, the way round that it ended up, which was not expected by many people at all. For a while it was largely thought that Labour and the Liberals would end up together. Then there is each of the parties having the arrogance to say that they will have sufficient control over the next Parliament to get what they want through. This is still a democracy. Opposition parties are still supposed to have some say. I know that after a few unfortunate years under first Margaret Thatcher and then Tony Blair, when majorities were excessive, Governments behaved in that way. Perhaps it is good that we return to the situation where Governments do not have control over Parliament and these things have to be agreed among other people, including Cross-Benchers—who are sometimes very cross.

[Baroness Neville-Jones]

I appreciate the importance that the noble Lords who have spoken place on the matter of refunds, but it is not at all clear that their anxiety on this matter is widely shared elsewhere. Following Second Reading, I asked the Identity and Passport Service to inquire into exactly how much correspondence it had had about refunds. I would expect that to be the place where letters were sent on that subject. From May to September, it received a total of 297 letters about ID cards, of which 122 included complaints about refunds. We do not know whether all of those 122 letter writers were cardholders, among the 12,000 who have paid for the card, but I do not think that that is a significant indicator of widespread indignation on the part of the public.

--- Later in debate ---

[Lord Brett]

My Lords, when I was involved in this, it seemed potentially to be a win-win situation. We have heard from my noble friend about the impact on airports and their ability to clear people airside for security purposes in a much shorter period. We know also that there was initial resistance from the staff, not to the detail but to the fact that the system was being made compulsory. It was only when the potential of what the system was about that the hesitation, to put it mildly, expressed by the staff turned into at least into an enthusiasm to investigate without necessarily committing to the results.

The third area is that of the airlines. The experiment was being carried out at Manchester and at London City airports, although any two airports could have been chosen. Carriers flying in and out of those airports do not have resident senior technical staff. They may have a contractor with airside passes who provides the general maintenance of an aircraft, perhaps unblocking a sensor or putting right a temperature gauge. If a more serious technical problem arises, engineers have to be brought in either from a repair facility or the headquarters of the airline involved. Those people will arrive at the airport with no airside security clearance whatever, but they cannot be allowed just to wander in and repair the aircraft. Therefore, another period of delay is built into the clearance of those individuals. However, with the provision of an identity card and the security it offered, this was another area in which a considerable advantage would have been gained for the airline industry, for passengers who could be delayed, and by making a saving in costs to airports themselves. Aircraft sitting like parked vehicles is not an advantage. At the start of the experiment, these were things that were seen to be potential advantages, so in a sense it is sad that we will not see the outcome unless the costs are exorbitant.

Let us look at the costs of aviation. A 747-400 airliner costs well in advance of £100 million, and even more modest aircraft cost tremendous sums. The daily cost of keeping an aircraft inactive is also very high. At the moment, the airline industry feels slightly battered by the costs that have been imposed by government, and this is an area where we could have formed a degree of coalition, if I may use the word, between the interests of airports, staff, passengers—we are the victims when aircraft are delayed—and the airlines themselves. I am sorry if the experiment will not be completed because there are powerful arguments for why it should be done. If not, how are we going to provide an equivalent over the coming period because, as sadly we have heard today, the problems associated with airport security are not going to go away?

[The Earl of Erroll]

My Lords, I had not intended to intervene on this amendment, but I will say two things. First, I suspect that a report before Parliament might be an unnecessary expense, but I hope that people will look at the experiences from it and incorporate them into future policies. Having heard what noble Lords have said, there seems to be confusion between nailing down a particular name or body to an identity card, and security. The trouble is that one does not know when someone goes bad. There can be a complete dissociation between issuing a pass to someone and them committing a crime. One has to go on checking whether someone has gone bad. Possession of a particular identity token does not show that someone is okay.

On the point raised by the noble Lord, Lord Brett, a lot of work is going on on the interoperability of identity systems. That is the way forward. There is a body of work going on from EURIM, which is an offshoot of the parliamentary group PITCOM. It is an interesting area. The problem is that different organisations vet people for different purposes. It may be totally safe to entrust someone with the secrets of the country, but you might not want them to babysit your children—and vice versa. I note that the noble Lord is laughing. I am citing extremes here to highlight the fact that someone may be perfectly all right working in airside security, but quite dangerous in a totally different situation. We must be careful not to confuse these things and not to think that possession of a nailed-down identity card or token that shows you have been given a certain name proves that you are okay. That is the underlying problem. We should move forward, looking at the interoperability of identity systems, so that if we have to take engineers from somewhere else, we know whom we can rely on and what it is safe for them to do, and can work out how to get them through quickly. I suspect that the bigger problem is the bureaucracy involved in issuing these things. People think that that is the clever place, but it is not.

--- Later in debate ---

[Lord Phillips of Sudbury]

This group of amendments—Amendments 9, 10 and 11, in the name of the noble Earl, Lord Erroll, as well as mine—is partly probing and certainly simplifying. When I read Clause 4, I found myself completely baffled by quite a bit of it, especially subsection (3). Being a bit of an old lawyer warhorse, I just kept at it. I read it and reread it and I concluded that anyone suffering from insomnia should put subsection (3) by the side of the bed for 2 o'clock in the morning. If you read subsection (3) six times, I almost guarantee sleep. I shall read it for the sake of Hansard. It states:

“In subsection (2)(b) the reference to P or anyone else does not include, in the case of a document within subsection (1)(c), the individual to whom it relates”.

I may be getting daft—I notice assenting groans from the noble Lord, Lord Bach—but I have tried in these amendments to clarify what that means. I am encouraged to do that because I am following Clause 4(2)(b) in the Identity Cards Act. I suspect that the parliamentary draftsman was trying to make things clearer by pulling out subsection (3) rather than allowing the sense of it to follow on from Clause 4(2)(b).

In Clause 4(2)(a) and (b), we have a definition of what is called improper intention. That definition is, I think—and I have consulted the very helpful Bill team, and they agree—exhaustive of what improper intention is for the purpose of this very important clause. I do not see that paragraphs (a) and (b) are exhaustive of improper intention sufficient to base a prosecution under Clause 4(1). I am anxious that there should not be events of dishonesty around identity documents—the holding of them or whatever else. I do not want there to be loopholes where some clever barrister can say, “This may have been a dishonest act by my client but it is not within Clause 4(2)”.

My Amendment 10 would add a further paragraph which reads as follows:

“the intention of using or allowing or inducing another to use a document for any dishonest purpose”—

for any dishonest purpose. I cannot see why that much broader subsection can be offensive to the purport of the clause. Indeed, it may be argued—the noble Baroness may shortly argue—that my subsection renders superfluous paragraphs (a) and (b). If so, we have knocked out two paragraphs for the sake of one. On my reckoning, that is good going.

In another life, I was for 26 years Jimmy Young's legal eagle, trying to explain to the baffled British public a little bit about the law of our land. If the amendments do anything to make it a bit clearer, I think that that is a job worth doing. I beg to move.

[The Earl of Erroll]

My Lords, I put my name to these amendments because I, too, had read the clause and got myself into complete confusion, so I thought that anything had to be better. I started trying to unravel this in my mind, and given that this challenge fell on a sleepless night, I thought that it might be quite interesting to try it.

What the noble Lord, Lord Phillips, has just said is true. The essence of it all is there is no point in having these laws if you cannot actually catch people. If we leave a loophole here, there is no point to a lot of the Bill. People will possess false identity documents and we will not be able to lock them up or punish them for it, and what is the point of the whole exercise if we cannot? It is critical that we get this clause right.

I read the amendment with interest. I thought that if I put some plain English in, that might help. I worked out that if person P, who is basically the crook, nicks my driving licence, which is covered by the wording Clause 4(1)(c),

“an identity document that relates to someone else”—

in other words, it relates to me—we then have to look at what he uses it for. On the question of “improper intention”, I was interested by the word “establishing”, and I would like an answer about that. Clause 4(2)(a) talks about,

“using the document for establishing personal information”.

Does that mean that, having grabbed my passport or driving licence, person P, in impersonating me, is trying to get information about himself on to the database so that he can establish and build up a false identity on the database that will take over my identity,? In other words, is he changing my address to his own, and things like that? If he sticks to driving licences, that is probably easier in the first instance because the checks are lower.

That is what the word “establishing” could mean, but equally it could be used in the other sense of person P ringing up to check that it is indeed my address. I do not know which way round “establishing” is meant. Is it active or passive? Is the crook pushing or pulling the information? That ambiguity could be dangerous. The word may be meant both ways, but lots of people are allowed to establish my personal details. A policeman, for example, needs to do so when he stops me and finds out whether mine is a genuine address. I do not know which way round the word is meant.

Then we come to the next bit, Clause 4(2)(b), which says that the crook can use the document to try to verify personal information about himself. Why would the crook want to verify personal information about himself? It is not personal information about the crook if he has established a new identity for me; it is actually personal information about a fictional person who appears to have my identity. I can see that we are going to have great fun about what is “personal information” with regard to a stolen identity.

So, we get into the little problem about verifying the personal identity of a person who does not exist, but then we come to Clause 4(3). I rewrote this myself to say that the actions detailed in subsection (2)(b) are not an improper use if my driving licence—the identity document mentioned in subsection (1)(c)—is used by the crook, person P, to verify my personal information, the person to whom it relates. In other words, it says that the crook can use that document to find out information about me. Okay, big deal. I do not see why that is so dodgy. That is the one exception that does not matter one way or the other. If that is not the case, I am not really sure what subsection (3) means and I would love to know, but that, after a lot of tortuous back and forth and rewriting, is what I arrived at.

The only other thing that occurred to me just now about improper intentions is that it is an improper intention,

“to have in P’s possession or under P’s control”.

This is where the matter becomes critical, because I know that the word “possession” has huge implications in law. You are in possession of a car if you have the car keys, from the point of view of drunk driving, whether you have an intention of using those car keys or not. If someone else has your shotgun but does not hold a certificate, and they drive 100 yards to get it back to your house because you have just fallen ill and have to go to hospital, they are in possession of that shotgun at that point without a proper certificate. So, if someone takes your driving licence off you in order to verify something about you, they are in possession of your driving licence at that point. I do not know if there are any issues around that, but as I was reading this I suddenly started thinking, “Hang on, we’ve got possession issues here as well”.

The whole thing is a ghastly muddle, and anything that could be done to sort it out would be better. Hence I back the amendments of the noble Lord, Lord Phillips of Sudbury.

--- Later in debate ---

[Baroness Neville-Jones]

My Lords, speaking as a non-lawyer, I hope that I may be able to give the noble Lord some comfort on this amendment. We certainly recognise that the intention of these amendments is to bring clarity to what might otherwise seem complex provisions of the Bill. As your Lordships will be aware, the provisions in Clause 4 re-enact the Identity Cards Act 2006. As the purpose of the Bill is to scrap the ID card scheme and destroy the NIR, that gives rise to questions about how we describe these offences and where we put them. However, law enforcement remains important. Last year, there were 3,000 convictions for offences under the 2006 Act. That is a significant number of successful prosecutions and the powers that are being re-enacted are being used on a daily basis by the police and other enforcement agencies and provide important operational tools to tackle fraud-related offences, so we are anxious to ensure that the law remains effective in this respect.

We do not see great benefit in considering amendments that are aimed at improving the clarity of the legislation which is successfully applied in the investigative and judicial enforcement stages of the criminal justice system. ACPO fully supports the retention of the existing powers. However—this is where I come to the next set of issues—we do not believe that everything should stand still. While re-enacting the provisions to maintain the effectiveness of tackling fraud, the coalition Government have undertaken to review the number of offences on the statute book and to consider the scope for repeal. Therefore, we are on the same track as noble Lords in wanting to ensure the appropriateness of the offences and the powers to ensure their enforcement.

Over this autumn, we will look at whether these offences should stand alone, or whether they can be accommodated within existing offences under fraud and counterfeiting legislation. I am aware that the offences in the Act derive in some part from the paper issued in 2004 by the previous Administration, entitled Fraud Law Reform: Consultation on Proposals for Legislation. We will examine the common ground, or overlap, that exists between the Identity Cards Act and other legislation to see if there is scope for simplification and rationalisation of the offences. I hope that this answers the noble Lord’s point. We will undertake that work this autumn alongside colleagues in Wales, Scotland and Northern Ireland. It may be that in the end we decide that the offences should remain in place; but possibly they could be combined with others. Clearly there is an operational need for them, so the issue is how they are best described and where they are best placed.

While Amendments 9 and 11, tabled by the noble Lord, Lord Phillips, do not change the meaning of that provision, Amendment 10 does, because the effect is to widen the scope of the offence so that it is no longer limited—here, perhaps, there is a substantive disagreement—to the use of cards to establish aspects of the person’s identity. The common factor in relation to all documents listed in Clause 7(1) is that they may be used as identity documents. It is the improper use of these documents as identity documents that the offence is targeting—nothing beyond that. Other dishonest uses to which the documents may be put are likely to be covered by other legislation. We are not neglecting the issue, but we do not see it as relevant to the Bill.

Obviously, this legislation is to get rid of the ID card system. In view of our intention to look at the law enforcement aspects and related offences, and bearing in mind in the mean time the need for these powers, I hope that the noble Lord will feel able to withdraw his amendment. I have no doubt that, in consideration of how we deal with these offences in future, his help and views will be greatly appreciated.

[The Earl of Erroll]

Would it be possible later to have a written explanation of what Clause 4(3) means? I am sure that I read it wrongly and it would be interesting to find out. Also, I do not know what “establishing” means in this context, and it would be nice to know that when I am asked by other people.

[Baroness Neville-Jones]

My Lords, Clause 4(3) excludes the scenario where a person uses another’s card to establish personal information about the other person. It would allow a carer, for example, to assist an elderly relative by using that person’s document to collect a parcel or avail themselves of a service on behalf of that person. In other words, that is a perfectly proper intention—what is intended to be excluded is improper intention. The term “establishing” could have two meanings, as suggested. It could mean proving certain facts, or finding out certain facts.

--- Later in debate ---

[Lord Phillips of Sudbury]

I am grateful for that, but I shall still come back to the point. The noble Baroness said that Clause 4 is a re-enactment of the provision in the Identity Cards Act 2006. This part of the clause diverges from the 2006 Act in a seriously unhelpful way. The changes mean that there has been a shift into subsection (3) of the language that is there. The noble Baroness did her best to explain it, but all I can do is to go back to the 2006 Act, which is better and clearer on the point. In withdrawing the amendment, I would ask the noble Baroness if she would think a little more about it before we come to the next stage.

I want to make one other point. The noble Baroness made the important point that my attempt to create in Amendment 10 through proposed new paragraph (c) a catch-all provision in terms of the definition of improper intention was unnecessary. However, she was less than categorical. I would be comforted if she and her advisers would put their thinking caps on and make sure that that is the case. I ask that because I am still worried that paragraphs (a) and (b), which provide the exhaustive definition of improper intention, would not catch circumstances where the Government would wish there to be an offence in terms of the possession of false identity documents. However, as I say, we are all reassured by the review that is to be undertaken in what is a very difficult field.

[The Earl of Erroll]

It may assist the Committee at the next of the stage of the Bill if I say that subsection (3), which the Government may look at again, is probably otiose. It is only an offence for person P, with improper intention, to have in P’s possession. The defence just stated was “not with improper intention”. A carer trying to collect a parcel has no improper intention. It means that either we have “improper intention” wrong or subsection (3) is otiose. I still believe that this should be taken back so that people can think about it.

--- Later in debate ---

[Lord Phillips of Sudbury]

Indeed he is. I apologise.

[The Earl of Erroll]

I thought we had leapt ahead of ourselves for a moment; it was great. I also put my name down to Amendment 19 because it is always important to have independent scrutiny. It makes people feel much happier and much safer. I do not see that in this case it needs to be very expensive; you do not need a huge office, a huge outside body or anything like that. Public confidence can otherwise be destroyed. Sometimes things go wrong, so it feels much happier having external independent scrutiny. We forget that at our peril.

Having someone reporting up the same chain of command to the same boss is never quite the same as getting a report straight out to Parliament. On something like this, which potentially involves civil liberties and citizens’ rights, it is very important to have a direct report to Parliament, which is outside the normal chain of command, just in case. It is not that I mistrust any of the people in the system; they are trying to do a good job under difficult circumstances, particularly as the politics of it are shifting and changing on a monthly basis. There is no bad will on my part. Rather, we should always do this as a matter of principle, and it is dangerous to start not doing it.

Something the noble Lord, Lord Phillips, read out reminded me of the phrase in RIPA,

“for the purpose of preventing or detecting crime”.

That was the general-purpose provision that was slotted into RIPA. We were told that the Act would apply only to serious and organised crime but it ended up with local councils using it for other things. At that point, everyone realised that we had a political problem on our hands because uses can change. There could be similar issues buried within the Bill that I remember noticing when I first went through it but then forgot about.

[Baroness Hamwee]

We have an amendment on that later.

[The Earl of Erroll]

Absolutely. It is important to have an external view of these things that will report directly to Parliament, because it is our duty to protect the rights of citizens against the Executive.

[Lord Rosser]

My Lords, I want to speak to my noble friend Lord Brett’s amendment as well as to the amendments of the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Erroll, which seem to raise a different issue. Primarily, though, I shall address my comments to the issue of identity fraud, which is raised in my noble friend’s amendment.

I think that it was on Second Reading that my noble friend Lord Bach pointed out that ID fraud is one of the UK’s fastest growing crimes, with nearly 2 million people a year falling victim to it and it costing the country some £2.7 billion. A huge proportion of people are affected; more than nine out of 10 people in the UK consider themselves to be at risk from identity fraud.

Minimising the paper trail of one’s identity details is an important part of facing up to the threat of fraud, and ID cards helped to do that, as the evidence that was presented in another place by the representative from the Manchester Airport group and the comments made today by my noble friend Lord Brett have indicated. The ID card scheme, of course, did not provide a panacea when it came to addressing identity fraud. The cards offered some help in that area, and we feel it is important that that is acknowledged, but with regard to, for example, identity fraud committed online, the ID card did not offer added security.

My noble friend’s amendment calls on the Government to produce a report on the lessons learnt for tackling identity fraud from the ID card scheme and its cancellation. It is interesting to refer back to the evidence given by the representative from the Manchester Airport Group to the committee in another place. I draw attention once again to points that he made. He said that the benefit that they got from the system was that they were absolutely sure that the person who was standing in the pass office was the right person. He was asked by committee members whether it might have been possible to achieve some of the benefits by other means—which is also important in relation to the amendment—for example, by using passports. He said that, yes, that was something that they would like to hold on to, but added:

“At the moment we are not getting very positive indications that that would be possible, but we will keep pushing”.

Later, he was asked whether he was saying that some of the innovative ideas in the identity card scheme could be replicated using the passport database or something similar. He said:

“I believe that if there is a will to do that, yes, we can. At the moment we are not actually feeling that will, but I believe that it is possible”.—[Official Report, Commons, Identity Documents Bill Committee, 29/6/10; cols. 29-30.]

Those observations suggest that there would be real benefit in having a report on the impact on combating identity fraud of the repeal—as that is the intention—of the Identity Cards Act 2006. The comments made in that evidence certainly suggested that the scheme had benefits, but that some of them might be achieved in other ways if it was scrapped. It is a case of looking not just at what may have been lost but at whether the benefits which were worth keeping, particularly relating to identity fraud, could continue to be achieved by other means. Reference was made in the evidence to the use of the passport database.

At page 7, paragraph 15 the impact assessment states:

“For Government and business, the benefits were expected to derive from simpler, quicker business processes and reduced cost of identity related fraud. However, the realisation of benefits depends very strongly upon high take-up rates for the card, because these are the key to engaging public and private sector organisations in offering card-based services”.

The point has been made that there was not a very high take-up; the system had only just come in. However, in the Government’s impact assessment there is a clear recognition that the identity card scheme could produce benefits for government and business by reducing the cost of identity-related fraud. Once again, that would seem to be an argument for the Minister to accept the amendment moved by my noble friend Lord Brett, which simply calls for a report on the impact of the repeal of the Act on combating identity fraud.

The noble Baroness told the House on Second Reading that an action plan was being developed by the National Fraud Authority and the National Fraud Intelligence Bureau, following their strategic threat assessment of the harm impact of identity crime, and that that was being overseen by the Home Office. If there is an exercise or if an action plan is already in the process of being drawn up, it is surely not irrelevant to look at the impact of the repeal of the Identity Cards Act 2006 on combating identity fraud and the lessons learnt from the operation of the scheme. Once again, I say, particularly given some of the evidence presented in the other place and the statement in the Government's impact assessment, that there would have been benefits in relation to identity fraud—albeit that of course I accept that the document said that that would relate to a high take-up of the cards.

Can the Minister tell us any more about the action plan—obviously, not the details of what is in it but the progress being made, what it might involve and when we might hear more about it? I also take this opportunity to ask whether, as part of the action plan, the Government are following the rollout of the new generation of identity documentation in Germany, which will include the radio frequency identity chip—which, as I understand it, will facilitate secure online transactions. At least, that is the theory; whether it does in practice is presumably something that still must be seen. Does the Minister think that anything can be learnt from that new technology to address the very serious problem, which everybody recognises, of identity fraud?

I hope that the Minister will feel able to accept these amendments. My comments are mainly related to the amendment moved by my noble friend Lord Brett, as clearly everyone has an interest in devoting the maximum resources and the maximum amount of information gained from operating other relevant schemes to trying to combat identity fraud.

Identity Documents Bill

Earl of Erroll Excerpts

Monday 18th October 2010 Lords Chamber

[The Earl of Erroll]

My Lords, I think I am the last speaker before the gap, unless the Cross Benchers have finally achieved the status of being a recognised bloc with the right to have a speaker after the gap. That would be a wonderful way forward, because we might get further rights as well.

I have a few comments about the Bill. I welcome it very much, particularly because it perhaps indicates that this Government are taking a much more libertarian approach than their predecessor. Many people have asked why it all came about. The trouble is that socialists believe in central control because the state should be running everything while capitalists like to know everything about their customers, and to both the individual is a bit of a nuisance. Out of that grows the idea that we can sort it all out centrally.

To me, the national identity register was the objectionable part. I did not have a problem with a bit of plastic with a picture on it, replicating the “chip page”, as I think of it—that bit in the passport. It is rather sad in some ways that, having started issuing those, you could not have just that to slip into your pocket when you go over to France. It would have no greater authenticity than a passport, but you could use it for countries that did not have a visa requirement or need to stamp something in your pages; it would be waterproof, which would solve the problem of the noble Lord, Lord Selsdon; and it need not cost very much more because no other information would be gathered to produce it—it would just be a bit of plastic, produced in quantity for probably an extra £3 or £5. But we will not worry about that for the moment.

Everyone has said pretty much everything that can be said about this topic, so I would like to reinforce a couple of points and think about wider purposes and other points, so the Government might see where they could improve things elsewhere. The real problem that I have with all these great central databases is simple; Hitler was elected and got into power quite legally. Someone said to me years ago, “How do you break into Fort Knox?”. The answer is, “You steal the key”. If you get yourself elected to power in a democracy, eventually you have all the power to get at these things and there is no way of resisting it. Parliament has total sovereignty, and so some future Parliament can open up whatever security locks and controls you put on a database—unless, fortunately, you have some disobedient civil servants further down who ensure that the greater powers do not get to know about it or destroy the thing first.

I shall start the other way around. You may think that you have nothing to hide, but how accurate is the information? I do not have a problem with the powers in Clause 10 on credit checking, credit reference agencies and other things like that, but my one caveat is that the data are not accurate. But then the government data in these large databases are already inaccurate; when they have been audited, they have often been found to have a lot of errors in them. This is one of the troubles, and it is my lesson for the Government elsewhere; it is difficult to link up and reconcile large government databases. That is why the process gets very expensive, and then certain large consultancies—the usual big seven, eight or nine of them, which are generally American-owned, so they remove British taxpayers’ money to give it to their owners in America—will make an awful lot of money advising us on how to do it and the job will spin on for ever, as we have seen with certain other database projects.

The other thing about the cancellation of the scheme is that the Government have learnt a lot so far in trying to introduce it, and that knowledge has been useful. At the end of the day, the Government have a requirement for strong authentication of people’s identity in certain areas—think of simple things like security at the Ministry of Defence or access to government establishments all over the place. That will need to be retained, but you do not need a national ID card scheme to do that; that is just normal business practice. One of the groups that I sit on at the moment, an offshoot of a parliamentary group, is looking at the interoperability of identity card schemes among allies and internationally, as well as just in the UK. That is the sort of thing that we should be doing because therein can lie some cost savings, although there are a lot of complications with that, which I am not going to go into here.

The Joint Committee on Human Rights has produced an excellent report, its second of the 2010-11 Session: Legislative Scrutiny: Identity Documents Bill. It has some extremely good analysis in it. I draw attention to the section on non-EEA biometric immigration documents; perhaps we could save some money there, too. I realise that we need to have a biometric system to “deduplicate” people who make repeated applications to enter, or who try to falsify and get other people in under their original documents and so on, but are we actually gathering more information than we need? Do we think that we are trying to build this into a database of foreign residents because we think that more terrorists come into this country than we grow at home? We ought to look at the effectiveness of this before we gather too much information.

I also get worried about the exchange of information with other countries on how much is needed and how much is not. Is there some vulnerability regarding travel?

I should like to say something about purpose, in reply to the noble Lord, Lord Maxton. Identity cards are not designed to work online, so they will be useless when it comes to making transactions over the internet. There is a huge liability issue; if you use the card for financial or contractual purposes, where does the liability lie? The Government certainly were not going to accept liability, and other organisations will not accept a contract if there is not some liability in the proof of identity. This is what organisations such as the notaries—the notary public—and the scriveners provide.

Credit card fraud, which is often called identity theft but really just involves the theft of a credit card to try to steal money, is very different from impersonating someone. It is up to the banks to sort it out—it is their liability. They could easily increase the security of those tokens if they wanted to. They have chosen one of the cheaper routes—they use even less expensive routes abroad—because there is a balance between the cost and the amount of money they lose. They should really be using two-factor, preferably two-channel, authentication, and some are beginning to do it. It is not difficult to do, and if the incentive is there they will do it, but we must not confuse financial liability with the Government’s identity card scheme or passports.

Another issue that sometimes comes up is counting people in and out of the country. This is the great dream of the UK Border Agency—the passenger name record. We count everyone in and we count everyone out, and we prove who went in and who went out. Some people say that we need the identity card for that, but so what? At the end of the year we tot it all up and find that 100,000 people have stayed. We might even know who they are or what they are called because they have foreign passports. How do we find them without having to do a cordon and search and without rounding them up? How do we then get them back home? Where will we keep them in the mean time? We know all these problems, and it is not realistic. Maybe we could save a bit of money on not counting people in and out of the country. It is a pretty pointless exercise; we get very gloomy when we see how many people want to stay. If incentives are in the right place, people will go abroad while good people will stay and help the economy. We do not want to discourage people from moving across borders. That issue is for a debate on immigration at a later time, but it crosses over into the identity debate.

Like others, I have reservations about the duplication of the provisions of the Fraud Act 2006 on possessing identity documents that belong to other people. We must be very careful that we do not simply create more powers. There is great confusion between the different Acts, and those powers will get misused if there is any ambiguity at all. I am not sure how necessary they are.

I think that we should probably offer the £30 refund to all people who have cards already—it would be a good PR exercise. I would advise a lot of them not to return the cards but to keep them; they will be worth some money one day as a collector’s item—unless, of course, it is illegal under the fraud provisions.

Biometric Passports

Earl of Erroll Excerpts

Tuesday 13th July 2010 Lords Chamber

[Baroness Neville-Jones]

The Government entirely agree with my noble friend that passport security is extremely important, and we intend to ensure that security. However, our view is that the interests of the country are not well served by the Government starting to maintain a database of all passport holders, which amounts to 80 per cent of the population.

[The Earl of Erroll]

I welcome the fact that biometrics will not be kept on the national identity register—this is essential—but we ought to have biometrics in passports which match ICAO standards to make it easier to travel. We should not be frightened of that as long as they are not held centrally.

[Baroness Neville-Jones]

We agree that it is extraordinarily important that passports should have adequate security, and we believe that British passports with the single facial recognition biometric will achieve those standards. There are actually a number of countries other than the United Kingdom that do not have plans to introduce a second biometric.