Identity Documents Bill

Lord Hunt of Kings Heath Excerpts

Monday 1st November 2010 Grand Committee

Moved by

[Lord Hunt of Kings Heath]

3: After Clause 2, insert the following new Clause—
“Compensation
The Secretary of State shall, by order, provide for a compensation payment of £30 to persons who have purchased an ID card under the terms of the Identity Cards Act 2006.”

[Lord Hunt of Kings Heath]

In speaking to Amendment 3, I shall speak also to the other amendments in this group, Amendments 8 and 20. We come to a very important matter of principle—the Government’s decision to refuse to compensate cardholders for the scrapping of the scheme. My noble friend Lord Rosser already picked up some of the points when he spoke to the first group of amendments. I ask the Minister what the Government have to say to the thousands of individuals who have spent money buying cards in good faith. These cards were sold on the basis, and the purchasers were given the impression, that they would be valid for a wide range of purposes for 10 years. However, there has been a change of government, a change of policy, and seemingly no care for those left inconvenienced and out of pocket as a result. I wonder what the Government now have to say to those people. Why do the Government seem happy to penalise them?

We have been told that the cost of £360,000 to compensate all those who will be eligible for a refund under the terms of Amendment 3 is too much. However, that is the maximum figure. It is quite plausible that a certain percentage of those eligible to claim will choose not to do so. It would be possible to entertain a time limit, a date after which claims could no longer be made, which might lower the total compensation figure. However, the important factor is that compensation had been offered.

On Second Reading, the Minister said:

“We realise that some people who spent £30 for a card with a 10-year life expectancy will be disappointed that it will be cancelled later this year without any refund, but those who chose to buy a card”—

this is a remarkable statement—

“did so in the full knowledge of the unambiguous statements by the coalition parties that the scheme would be scrapped if we came to office. They cannot now expect taxpayers to bail them out”.—[Official Report, 18/10/10; col. 715.]

That is, to say the least, unsympathetic. To rely on the public having an in-depth knowledge of party manifestos or coalition agreements—documents that in most cases were published long after most cardholders had spent £30—is a touch unrealistic. The Government's continued reliance on their insistence that people knew well before the election what would happen if a Conservative Government were elected is an extraordinary decision.

I received an e-mail this morning from Mr Nicholas Hodder, who informed me that, since obtaining his ID card in May this year, he had presented it 30 times in order to enter or leave the Schengen area. I ask the Minister why someone like Mr Hodder, who in good faith purchased the ID card and has used it effectively, should suddenly be told, despite the fact that he bought it for a 10-year period, that it will be taken out of use very shortly and that he is not to receive compensation?

I pray in aid the impact assessment produced by the Minister’s department. The IA looked at five options. Under option 3, the return of cards is not required, but there will be a return of fees to current cardholders. The benefit of that option over the do-nothing option 1 is said to be:

“Reputational benefits for the government, in dealing with people who purchased a now-useless card in good faith”.

Is the Minister not concerned about the reputation of the Government? Does she not see that in not agreeing to refund £30, the Government are developing a new principle, which can only reduce trust in Governments generally? Why is it acceptable to compensate companies for termination of contracts? I refer her to the preferred option of the Government. As far as concerns funding, the cost of £22 million is contained in the summary of policy option 1 in the impact assessment. I will come on to whether it should be policy option 1. Option 1 refers to the costs of,

“termination of contracts with contractors”.

Why is it reasonable to pay the costs of terminating contracts with contractors but not with members of the public?

I refer again to the impact assessment. The preferred policy option—that of cancelling ID cards without refunds and with no requirement to return the cards—states that the £22 million includes the cost of the refund process. Clearly, at one point, the Government considered including refunds in the policy option that was being preferred; but presumably at some point they decided to drop this. None the less, it would appear that the £22 million must include the cost of refunding fees. Perhaps the Minister can clarify this point.

My confusion about the impact assessment of 26 May 2010 is that it refers to five options. Option 1, do nothing. Option 2, scrap ID cards, return of cards not required, no return of fees. Option 3, scrap ID cards, return of cards not required, return fees. Option 4, scrap ID cards, return of cards mandatory, no return of fees. Option 5, scrap ID cards, return of cards mandatory, return fees. On page 1 of the impact assessment, signed by the Minister, Damian Green, on 29 May 2010, it states:

“Option 2 is the preferred option”.

But when I turn to the analysis on page 2, this option is described in the heading as “Policy Option 1”. Can the Minister clarify exactly which option we are talking about?

That brings me to Amendment 8. This is a straightforward and, I believe, much needed addition to the Bill. Conservative Party Ministers, when in opposition, made claims about the current cost of the ID card scheme that ranged wildly from nearly £1 billion to up to £20 billion. However, the national identity service cost report of October 2009 stated that the projected forward cost of providing ID cards until 2019 was £835 million. Crucially, this figure does not equate to the savings to be made from scrapping the scheme. We know this because the impact assessment which accompanies the Bill states at the bottom of page 4 that:

“The October 2009 cost report indicated that cancellation of ID cards would avoid future costs of £835m up to October 2019. However, these costs were planned to have been recovered through future fees to ID card purchases. Therefore, there are no benefits to the taxpayer from Year 3 onwards”.

The tables set out in the impact assessment reveal that total savings from scrapping the scheme are £180 million, and the total cost of cancelling ID cards and the NIR are stated as £22 million.

What is clear from the apparent muddle is that the Government have been using rather dubious figures to claim savings on the scale that they would have liked to see. I believe that a definitive and preferably independent audited costs and savings report is urgently required to clarify this matter for all concerned. It would be useful if it were part of the duty of the Government to provide clarity in this area. Amendment 20 is consequential on Amendment 3. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I have added my name to the amendment moved by the noble Lord, Lord Hunt. To be honest, I am disappointed that we have to spend time on this issue. That is because on any normal sense of simple fairness, we would not hesitate to repay the £30 that individual citizens have laid out for one of these cards. I have also to express disappointment at the reasoning advanced for the refusal to do so. The noble Lord, Lord Hunt, has already gone over this, and indeed it was referred to at length at Second Reading. I cannot resist quoting from the Statement on this made by the Home Secretary in June:

“We made it clear that we were opposed to identity cards … The Liberal Democrat party made it absolutely clear that it was opposed to identity cards. People knew well before the election what would happen if a Conservative Government were elected”.—[Official Report, Commons, 9/6/10; col. 346.]

Frankly, it demonstrates an astonishing lack of reality vis-à-vis the great British public to believe that they read party manifestos. If I am allowed to do so, I would like to ask anyone in the Committee to raise their hand if they read all three party manifestos. I think we can say that the noble Lord, Lord Brett, was the sole person to have paid such attention to the detail.

[Lord Hunt of Kings Heath]

My Lords, I did, too, but surely the point is that we are not really ordinary people in this context.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness for giving way, but will she answer the point made by the noble Lord, Lord Phillips? Is she saying that all holders were written to and told that no refunds would be given, or are they expected to read the statements that appear in the media?

[Baroness Neville-Jones]

People have been written to. I will come to that in a moment.

--- Later in debate ---

[Baroness Neville-Jones]

I quite appreciate what the noble Lord has just said. The noble Lord, Lord Hunt, asked about the impact assessment, which simply set out the possibilities in a straight catalogue of options, which ranged from doing nothing through to the option chosen. Today, we are debating the option chosen by the Government.

[Lord Hunt of Kings Heath]

I am sorry to disagree with the noble Baroness, but, with the greatest respect, first, clearly, this impact assessment was produced in a hurry, because it is such a mess. Clearly, on page 2 of the impact assessment, it is shown as option 1. Yet, on the front page, option 1 is the “do nothing” option, whereas option 1 on page 2 is the option to cancel ID cards without refunds and no requirement to return cards. But when I look at the first section of policy option 1 on page 2, under the cost figures of £22 million, the costs include the cost of the refund process. I rest my case.

[Baroness Neville-Jones]

I do not think that this Chamber or the House is under any illusion as to which of these options we are debating today. If there has been confusion over—

[Lord Hunt of Kings Heath]

With the greatest of respect to the noble Baroness, the preferred option says that it includes the cost of the refund process.

[Baroness Neville-Jones]

Option 2 was the preferred option, as I have made clear. That is the option that we are discussing. I am afraid that there is an error simply on page 2. The figure of £22 million was also queried. That is the cost of decommissioning in the first year.

The Government take the view that it is not a sensible use of public money to throw further costs behind this scheme, and that the right thing to do with taxpayers’ money is to cancel this scheme but not to pay refunds. Accordingly, I invite the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Brooke of Sutton Mandeville]

That is an entirely fair point, which I am happy to take. The fact remains, though, that even under the provisions that the noble Lord issues, I still stand by my statement: the figure of 12,000 does not indicate overwhelming popularity for the scheme. People were not fighting in order to get their own cards.

On the fact that compensation is available for contracts but not in different languages with regard to ID cards, presumably that occurred because the original contracts allowed for what would happen in the event of the scheme in any way being interrupted. That is the way in which contracts are usually written. I have heard everything that has been said about what this Government have not done but I notice that the previous Government, in selling the ID cards, did not appear to have built in a provision in relation to compensation calculations, perhaps for the good reason that they did not want the thought to enter the public mind that they might not be returned at the next general election and that therefore the ID scheme would be interrupted.

On the same point, I have to say quietly that although, in their rush towards modernisation, the Government were keen to remove Latin entirely from public life in this country, the phrase “caveat emptor” is presumably one that still rested in their mind when they brought in the scheme in the way that they did.

[Lord Hunt of Kings Heath]

My Lords, this has been an interesting debate. There is some risk that we will return to debating the broad principle of ID cards. I will desist from doing so, save to say to the noble Baroness that, on the question of popularity, my noble friend Lord Brett was right when he spoke about rollout and the expectation that the number of people purchasing ID cards would increase over time. Secondly, there is no doubt that opinion polls have shown consistently that the public support ID cards. However, we are not here to debate that. The Opposition have accepted that this policy was contained in the manifestos of both coalition parties. That is why we do not seek to obstruct the progress of the Bill. However, as the noble Countess, Lady Mar, suggested, it is important that due process is observed before statements are issued by the Government, and the noble Baroness has graciously accepted that point.

The second point about manifestos concerns their relation to Salisbury-Addison and the Salisbury Convention. We are not quite into that territory. However, I am certain, from my reading, that no statement was made by either party that no compensation would be given to cardholders who will lose many years’ use of their ID cards. The noble Baroness is resisting coming back to the point of principle here. As far as concerns the reputation of any government, to say to the public, “It is your fault, you were silly enough to buy an ID card when some opposition parties said that they would scrap them if they got into power”, is to expect the public to take a punt on the election result. Who could have forecast that we would now have a coalition Government? It is treating ordinary people with a lack of respect.

I say to the noble Baroness, whom all noble Lords respect enormously, that she is digging a hole for herself here. If my party were still in government, the possibility of us getting some proposal like this through the House of Lords would be nil. Obviously, the circumstances of the coalition are different, but I suggest that the Minister should think very seriously between Committee and Report, because the view of the House of Lords will be that this is not the right approach, and that compensation should be offered.

I will not bore away at the issue of the impact assessment. I hope that, between Committee and Report, there will be a clarification of which option we are talking about. Secondly, the preferred option set out in the impact assessment says that the £22 million includes the cost of the refund process. I would be grateful if the Minister will write to me to confirm whether the £22 million includes the cost of refunds. With that, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

--- Later in debate ---

[The Countess of Mar]

My Lords, I support the noble Lord, Lord Phillips, as does the Joint Committee on Human Rights. On page 3 of its summary, the Joint Committee states:

“Clause 3 of the Bill requires the Secretary of State to destroy all information recorded in the NIR within two months of the Bill receiving Royal Assent. We recommend that Clause 3 be amended to ensure that not only information held on the NIR but all other information collected in connection with the NIR be destroyed in line with the requirements of the Data Protection Act 1998, and without delay”.

I support the amendment of the noble Lord, Lord Phillips.

[Lord Hunt of Kings Heath]

My Lords, although there are different views about the ID scheme—as we identified in our earlier debates—clearly there is a general understanding among all noble Lords that, given that the ID card scheme will be scrapped if the legislation is passed, the destruction of the data needs to occur properly and efficiently. I agree with the spirit of the amendment of the noble Lord, Lord Phillips. The question is, what is the best way to achieve the desirable policy outcome? Clearly, destruction must be thorough, transparent and successful in order to provide sufficient public confidence in the process. Those whose data are held on the national identity register deserve reassurance that their personal information has been destroyed to an acceptable standard.

I was grateful to the Minister for saying at Second Reading that the Government were committed to producing a Written Statement to Parliament on the event of the destruction of the data contained in the national identity register. It is absolutely right, and I welcome the fact, that the Government will report on the process and delivery of the destruction of the data. However, given the report of the Joint Committee and the comments of the noble Baroness and the noble Lord, and given that it is such a sensitive area, it would be helpful if that were to be made a statutory requirement. In reporting to Parliament, the Government should specify what data have been destroyed, the process involved and the standard by which destruction occurred. I recognise that the Minister is having a tough day with the Statement as well as this Committee, but it would be helpful if she were able to give a little more information in respect of that.

I would also like to follow the noble Lord’s amendment and its implication. Will the Minister confirm that the destruction will occur in line with the standards of the Data Protection Act 1998 to ensure that the process is recognised as being fully comprehensive? On Report in the other place, the Minister, Mr Damian Green, revealed that the Government were in contact with the Information Commissioner’s Office about the destruction process. As part of the Government’s stated wish to ensure transparency and openness about the physical destruction process, will the Minister consider making available communications with the Information Commissioner as soon as possible and, at the very least, include this information in the report that the amendment calls for?

Finally, Clause 3 requires destruction of data within two months of Royal Assent. I would be grateful to have confirmation from the noble Baroness that the Government are confident that that deadline can be met.

[Baroness Neville-Jones]

My Lords, I thank the noble Lord, Lord Phillips, for the time that he has taken to discuss this aspect of the Bill with the Bill team. His experienced views on these matters were very much appreciated. The best thing that I can do to reassure the Committee is to describe what we are going to do. I ask noble Lords to forgive me if that takes a moment or two. The national identity register is a generic term applied to the process of collecting and storing personal biographical and biometric data on ID card applications. At the moment, the core database is maintained in secure conditions on behalf of the Identity and Passport Service by its main contractors. Data held for dealing with applications, for subject access requests or for marketing purposes are similarly held in secure conditions by IPS staff and by contractors, such as Teleperformance.

IPS and any other party which has or had access to information gathered in connection with the NIR is required to comply with data protection legislation. We certainly will ensure that that is the case throughout. IPS has adopted an active approach and has identified all sources where information recorded as part of the NIR is held. As a result of that exercise, three categories have been identified. The first is the core data where the central records for the NIR are held. Core data containing biographical and biometric data are held by contractors on secure production systems. The storage media such as hard disks and back up tapes containing the data will be physically destroyed by shredding. That shredding process will comply with requirements for destroying secret data set out in Her Majesty's Government Information Assurance Standard No 5—the Secure Sanitisation of Protectively Marked or Sensitive Information. This category represents by far the largest element in the destruction process.

Statement of Changes in Immigration Rules (Cm 7944)

Lord Hunt of Kings Heath Excerpts

Monday 25th October 2010 Lords Chamber

These changes, and similar ones in Germany, Denmark and France, are modelled closely on the system in place for several years past for dealing with spouses in the Netherlands, except that in the Netherlands family members of persons who have been recognised as refugees are exempted permanently from the test. Research there by Human Rights Watch has shown that the system hinders integration by preventing spouses from living together; and the operation of the test, coupled with the income requirements, high costs and long waiting periods, creates a strong impression—expressed also by the majority of migrant representatives interviewed by Human Rights Watch—that the measures are not about integration but rather about keeping people out of the country. In the words of one, they are “to close the door”. I fear that that will be the legitimate reaction to this statement among immigrant communities here too, so that the damage to integration will not be confined to the families immediately affected. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, it may be for the convenience of the House if I now speak to my Motion. However, perhaps I may first comment on the interesting remarks of the noble Lord, Lord Avebury. As he said, the previous Government had signalled their support for English language changes, but as part of a staged process over a number of years in order gradually to introduce the policy that all spousal applicants would have to speak English in order to better their integration. The decision to go for a phased development related to the availability of English language classes in some of the countries from which applicants were likely to come. I shall be interested in the Minister’s response to the points and questions that the noble Lord, Lord Avebury, has raised.

I pay tribute to the Merits Committee for its careful attention to the two statements of changes in the Immigration Rules that are encompassed by my Motion. I turn first to the substantive statement, HC 59, laid on 28 June. Two changes are proposed in that statement to the points-based system as applied to highly skilled migrants. These are to provide for the application of a limit on applications approved under tier 1 general of the points-based system and to increase the number of points required to qualify under tier 1 general. These changes are meant to be interim and the Government are consulting on how limits should be determined and applied in the longer term on a permanent basis. I have two substantive points to make: first, the principle of the changes to be made; and, secondly; the degree of parliamentary scrutiny in relation to the size of the cap.

Last Thursday, we had an excellent debate on the Government’s cap policy in relation to highly skilled migrants. It was opened by the noble Baroness, Lady Valentine, and more than 20 speakers from all round the House took part. Essentially, it drew attention to the illogicality and damage to the UK of the immigration cap imposed by the coalition Government.

In speaking to my Motion tonight, I do not underestimate the challenge of immigration policy for any Government. Over the centuries, this country has experienced wave after wave of migrants coming to our shores and we have benefited mightily from the talent and commitment that they have brought. They continue to come and enrich our country. However, migration also brings pressures to many of our more vulnerable communities—pressures on jobs, public services and social cohesion. That is why the previous Government committed themselves to an immigration system that both promoted and protected British values. As a result of the action that we took, our borders are stronger than ever. We recognise the pressure that can be placed on housing and public services in many communities and we had planned to expand the migration impact fund paid for by contributions from migrants to help local areas.

We can clearly see the progress made, with a reduction in net migration to the UK and with asylum claims now down a third from their 2002 level. We also introduced the new points-based system to ensure that the need for migrants was closely aligned to the needs of the British economy. That is why we built flexibility into the system. That flexibility has essentially been removed by the cap that the Government have introduced—at first temporarily through the statement, but to be followed by a permanent cap next year. This in turn has brought immediate problems for business, universities and the arts. I believe that it threatens to seriously undermine the UK economy.

Last Thursday, in the debate, the consequences were spelt out by many noble Lords. The noble Lord, Lord Ryder, the chairman of the Institute of Cancer Research at the University of London, spoke about the institute as a world-leading cancer research organisation and said that its international pre-eminence would be at risk unless the Government adapted their cap on immigration. My noble friend Lord Giddens said that many companies are already deciding not to invest in projects in the UK because of worries about the availability of specially skilled staff. The noble Lord, Lord Lucas, talked about the impact on the independent schools sector. The noble Baroness, Lady Manningham-Buller, spoke about the need for our universities to be globally competitive and said that they were being put at risk by the cap. The noble Baroness, Lady Hamwee, raised concerns about the impact on our creative industries. The noble Lord, Lord Newby, drew attention to the critically important energy sector, where the arbitrary cap may force companies to move specialist functions to other countries. Many similar points were made by other noble Lords, including my noble friends Lord Judd and Lord Turnberg.

Tonight, we have an opportunity to ask the Government to reflect on the damage that their arbitrary cap is doing already and will certainly do in the future. I hope that the Government will also reflect on the degree of parliamentary scrutiny that they are affording to these major changes in policy. The Merits Committee report identified four matters that the House might wish to explore. First, is the Government’s analysis of the impact of the changes on the number of applicants accurate? Secondly, has the case for interim limits been fully made? Thirdly, will the changes have any specific equality impact? Fourthly, what is the Government’s reasoning for not putting the actual limit in the statement itself, which would then make it subject to parliamentary scrutiny?

Northern Ireland: Police Evidence

Lord Hunt of Kings Heath Excerpts

Wednesday 20th October 2010 Lords Chamber

[Baroness Neville-Jones]

As my noble friend says, active co-operation between the police forces on the ground is very good, as I think his parliamentary committee had reason to say recently. On the involvement of the central authority—that is, the Home Office—it is normal form for letters of request to come into the central authority for the purposes of ensuring that they are properly dealt with. The central authority in London has taken considerable pains to reduce the backlog and to improve its performance, as we were aware that there were complaints; indeed, the previous Government took some measures to improve the situation. It is fair to say that the performance now by the central authority is regarded as good and the Irish authorities have so said.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness will be aware of discussions in March this year between the police forces on both sides of the border, which identified the desirability of a faster transfer of evidence and suggested bypassing London and Dublin. Would it not be a good idea for the Government to look seriously into that proposal?

[Baroness Neville-Jones]

On the transfer of information, the outgoing request goes from the local authority—that is, it would go directly from Northern Ireland—while the incoming goes via the central authority. That is the system that is normally used. Occasionally, there are instances of that not happening but, as a general proposition, requests come that way. Our understanding is that that is what Dublin prefers.

Subsidiarity Assessment: Seasonal Workers (EUC Report)

Lord Hunt of Kings Heath Excerpts

Wednesday 20th October 2010 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is a most important debate and I am indebted to the European Union Committee and to its Home Affairs Sub-Committee for the work that they have undertaken. I say to my noble friend Lord Richard that I am delighted that the views of the committee have been made known to us in this way. As the noble Lord, Lord Roper, has indicated, this is the first occasion on which the House is being asked to exercise new powers under the treaty of Lisbon. But I would also suggest that it is one of the first occasions on which the new Government’s policy towards the EU has been put to the test.

I disagree fundamentally with the noble Lords, Lord Stoddart and Lord Pearson, when it comes to matters European, but they are right to put the approach of Her Majesty’s Government under the spotlight. The matter arises from Europe’s need for third-country seasonal workers. The Commission believes that there is a need for low-skilled and low-qualified workers, which will continue expanding; that there is a more permanent need for unskilled labour within the EU; and that these gaps are unlikely to be filled with EU-national workers because, as we well know, such seasonal work is often unattractive.

We are also informed in all the useful documentation that we have been able to see that the Commission sees the proposals before us as part of the EU’s effort to develop a comprehensive immigration policy. It cites in its defence a number of political mandates to justify such action and sees its proposals as contributing to implementation of the EU 2020 strategy and to what it describes as effective management of migration flows for seasonal temporary migration.

As the noble Lord, Lord Roper, has already suggested, because immigration is a matter where the Union and the member states share competence, the Union can act only if and to the extent that the member states cannot use their national laws to govern the conditions of entry and residence of third-country nationals as seasonal workers. As the noble Lord said, the committee’s reasons for believing this are set out in the report. They do not need repeating. In my view, they are substantive and persuasive.

It is significant that a number of other national parliamentary legislatures have also expressed concerns. Substance to the Select Committee’s reasoning is also given by the House of Commons European Scrutiny Committee, first, at its meeting on 15 September where it concluded that, while there is an appropriate legal basis for the draft directive, the committee was less certain that the measure respects the principle of subsidiarity. At its subsequent meeting on 12 October, the House of Commons committee undertook what can only be described as a very careful analysis of the draft directive and the Commission’s rationale for its actions. It concluded that there were continuing reasons to doubt whether the draft directive complied with the principle of subsidiarity.

It is rather surprising that the Minister for Immigration, Mr Damian Green, did not appear to share that concern. He told the committee that he believed that the draft directive is consistent with the principle. In his argument to the committee, he said that he believed that it complies with subsidiarity on the basis that decisions taken by one member state on the rights of third-country nationals could affect other member states and distort migratory flows. He also suggested to the committee that labour mobility within the EU, especially from new to old member states, may cause or aggravate a shortfall in seasonal labour in the source countries, which needs to be met from outside the EU, and that this inter-relationship argues for EU-level measures to manage the admission of seasonal workers from outside the EU.

I found that a rather surprising analysis by the Minister. As the Conservative Party manifesto seemed to suggest that it would be rigorous in its efforts to prevent,

“further extension of the EU’s powers over the UK”,

one would have thought that one might have had a rather more convincing argument from Mr Green as to the approach that the Government took. It would be helpful to the House if the noble Baroness could define what the Government consider subsidiarity to be. I thought that the questions asked by the noble Lord, Lord Inglewood, were extremely important in that context. I agree also with the noble Lord, Lord Roper, that simply because Her Majesty’s Government have decided not to opt into the directive, it does not detract from raising the serious question about their judgment and response to the subsidiarity question.

I end by coming back to the point made by my noble friend Lord Richard, who raised the issue of timing. As the noble Lord, Lord Roper, has explained, the long Summer Recess has caused problems. The timing also exercised the Commons European Scrutiny Committee. In its letter of 13 October to the president of the European Parliament, the chairman of the committee, Mr Cash, pointed out that the parliamentary timetable did not permit the Commons to issue a reasoned opinion by 15 October, when the eight-week deadline expired. I know that the committee was aware that the former Commissioner for Institutional Relations and Communication Strategy had already said that the Commission would listen to the views of national parliaments even if there were an insufficient number of reasoned opinions to require the Commission formally to review its draft legislation. However, ideally one should not have to rely on the good will of the Commission in that respect.

I should like to put this point to the noble Lord, Lord Roper. In view of the timetabling difficulty and given that this might arise again in the future, particularly in the circumstances of the Summer Recess, will he consider, in conjunction with the Commons European Scrutiny Committee and the Leaders’ Group in this House which is looking at procedures, whether there is a way of avoiding this problem in the future? Overall, however, from the Opposition Benches, I have no hesitation in supporting the Motions tabled by the noble Lord, Lord Roper.

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

My Lords, along with the Benches opposite, I am grateful to the committee for its report and for the unusual degree of unanimity and agreement that has arisen in consideration of a matter concerning the European Union. As the noble Lord, Lord Roper, said, this is a first and our debate is about an important issue—the test of compliance of the draft directive with the principle of subsidiarity. Indeed, as he pointed out, the fact that something is desirable is not enough to meet the principle of subsidiarity; it has to be necessary.

I start by responding to the important points raised by my noble friend Lord Inglewood. The Government are a strong supporter of the Lisbon treaty arrangements for national parliaments to be given a direct say in the application of what we regard as the crucial principle of subsidiarity in EU lawmaking. That is defined in the treaty and the Government respect the right, irrespective of their own view, of the Houses to take their view on the European institutions to ensure that the Commission’s application of the principle remains within the bounds of the treaty. We believe that this constitutes an important step towards the democratic legitimacy of the European Union.

I was asked about the relationship between subsidiarity and the policy objective. When considering any directive, the Government’s policy is to assess as a matter of course the proposal on the grounds of subsidiarity irrespective of its substance. The Government carry out the subsidiarity test by checking whether, where the treaty allows for action by both the Union and member states, the objectives of the proposed action cannot be sufficiently achieved by member states by reason of the scale or the effects of the proposed action and so could be better achieved by the Union. That is the high test. Should the Government conclude that the action cannot be better achieved at the Union level, they would submit their views to the Commission. I hope that that makes it implicitly if not absolutely explicitly clear that the Government’s view is that subsidiarity takes precedence.

Before moving on to the specific issues raised by the committee, I should like to set out the Commission’s position on this directive. As a number of speakers have noticed, the Government have decided that the UK will not opt in to the measure. The UK’s immigration system does not currently provide for the admission of seasonal workers and our view is that our seasonal labour needs can be met from an expanded EU labour force. The seasonal agricultural workers scheme was closed to third-country nationals on 1 January 2007 by the previous Government and within the EU it is now open only to nationals of Bulgaria and Romania. We have no reason to suppose that that supply of labour will be inadequate. The Government have proposed setting a limit on the future volume of non-EU migrants allowed to enter the UK and are carrying out consultations on the options for implementing this policy.

Against that background, it would not have made sense for the UK to participate in an instrument that provides for common rules for the admission of third-country nationals for seasonal work, nor would it be sensible to lock ourselves into a directive that limits our freedom to decide what kind of controls we might want to apply to seasonal workers in the future.

The subsidiarity test is not always as straightforward as it seems, as it depends on an assessment of whether the proposal would have the results that it sets out to achieve. It is clear that in given instances it is possible for lawyers to disagree on these matters and for legal advice to be different, as implicitly noted in the contribution of the noble Lord, Lord Richard. The Commission’s view is that the need for seasonal workers is a “common occurrence” in most member states and that the terms on which one member state admitted such workers could distort migratory flows; it suggests that decisions by one member state could affect other member states. The committee argues that the need for seasonal workers may nevertheless differ between member states and that the treaty on the functioning of the EU recognises that volumes of admissions are for determination by each member state.

The Commission argues that the action is needed to reduce overstaying and illegal entry in an area without internal borders. The committee rejects this view on the basis that it does not see why having common rules would reduce this risk. The Commission’s proposals include provisions that would facilitate repeated re-entry as a seasonal worker on the basis that those admitted as seasonal workers would be less likely to overstay if they had some certainty that they would be able to re-enter after they left.

The Commission’s third argument is that exploitative working conditions need to be addressed by a,

“binding and thus enforceable EU-level agreement”.

The committee has objected that national measures may be equally binding and at least as effective. The test in this case, therefore, depends on whether we think that the intended result is better achieved through collective action.

Finally, the Commission suggests that the measure is crucial for effective co-operation with third countries. The Government share the committee’s assessment that this is unpersuasive given that nothing in the measures provides leverage for negotiation of wider agreements with specific third countries.

The Government take the view that the case for compliance with the subsidiarity principle is arguable, as noble Lords on the Benches opposite have noted, in respect of migratory flows and the risk of overstaying. However, the fact that there is a divergence between the applicability of compliance with this directive and the principle of subsidiarity does not detract from our belief that the view of the House on the European institutions and their duties should take precedence and should not be trumped by the Government’s view on compliance with given articles. The earnest of our view is that we give precedence to the committee’s view despite our differing opinion on the application of subsidiarity in relation to a couple of the clauses.

[Lord Hunt of Kings Heath]

I am sure that the House will be gratified to learn that the Government are not going to disagree with the Motion being put forward tonight, which is the implication of what the noble Baroness has said. Yet the fact is that the Minister clearly said, at least to the Commons scrutiny committee, that he believes the draft directive complies with subsidiarity. If that is the case on that particular aspect, to what extent does that create a precedent in relation to the Government’s approach to the EU’s clear wish to develop a comprehensive immigration policy? For instance, if the Government are unwilling to argue with the Commission on subsidiarity in relation to this order, does it go wider than that?

[Baroness Neville-Jones]

The noble Lord grossly overstates what I have just said, which was that in these two instances there was an arguable case. Every single proposition put forward by the Commission will be treated on its merits by the Government and, as I have indicated, it will certainly be subjected first and foremost to the test of subsidiarity. The general position of the Government is well known; we regard immigration as something which is in the purview of the United Kingdom.

[Lord Hunt of Kings Heath]

I am sorry to interrupt the noble Baroness again, but when she says it is arguable that that is the Government’s case, that is not what the Minister in the other place told the scrutiny committee. I have already read out what he said. He does not say it is arguable, but that he is satisfied that the draft directive complies with subsidiarity. I would have thought that that sets a precedent for other areas of immigration in which the Commission may wish to involve itself in future.

[Baroness Neville-Jones]

I am saying that we will treat each of these proposals as put forward by the Commission on its merits. I hope that it will be discouraged from putting forward further proposals by the reaction from member states. It does not follow that, because we have taken a view on a couple of these articles, we will take a wider view of the rights of the European Commission or the competence of the European Union in immigration policy.

I turn for a moment to the questions raised by the noble Lord, Lord Pearson of Rannoch. He asked what was likely to happen next. As a student of these matters, he will know quite as well as I do that if one-third of national parliaments object on subsidiarity grounds, the proposal is sent back to the Commission. That is the yellow card; if a majority of parliaments oppose a Commission proposal, it gets the orange card. I do not know how many cards there are on the table, but we certainly regard this process of showing the European Commission what position the national parliaments take as being an important part of the process—and well said that this is a direct intervention in the legislation process of the European Union.

The noble Lord’s other point was about financial supervision and the progress of what the Commission is doing. I am afraid I will have to write to him on that, as it is not something on which I have been briefed. I think it is something in the purview of the Treasury, but I undertake to write to him.

Identity Documents Bill

Lord Hunt of Kings Heath Excerpts

Monday 18th October 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I am sure that the House will take note of what has just been said.

Those are the exiguous outputs of the scheme and confirm our long-held concerns that the scheme was expensive, ill thought out and unlikely to find favour with the public. I will return to those aspects and to the issue of passport security later, but I will concentrate for a moment on our fundamental concerns, which lie in the gathering by the state of information that is neither proportionate nor necessary.

The setting up of the national identity register has meant gathering voluminous biographical and biometric personal data on the individual, on the sole criterion of having applied for an identity card. Under the 2006 Act, the individual is required by the state to notify any change in personal details—for instance, a home address—for the lifetime of the card. As things stand, any failure to do so within that period of 10 years could result in the cardholder paying up to £1,000. One has to ask what kind of big brother state that is.

The crux of our deep concern with the ID card scheme is that the purpose of gathering and retaining data was not clear either in the 2006 Act or in how the national identity register operated since its inception. There is the potential for the state to use gathered information for any purpose which it thinks fit. In effect, each cardholder has paid £30 to be photographed, fingerprinted, put on a database and tracked by the state for the following 10 years. Your Lordships may consider this an exaggerated view of the ID card scheme, but sadly it is the reality. We do not always agree with Liberty, but in this instance it is spot on. In its oral evidence in Committee in the other place, the director of Liberty said:

“One of our fundamental concerns about the national identity register was that it was a multi-purpose and non-purpose-specific database, which meant that by definition the amount of information on it would inevitably grow and by definition it was not necessary and proportionate to a particular cause”.

That view was echoed by Justice in the same Committee, and it reflects the importance of ensuring that databases are subject to openness, accountability and proportionality. In our view, the ID card scheme meets none of those key requirements. Instead we have a scheme with little or no purpose that allows the state to intrude into the life of the citizen. There was no attempt in the legislation to achieve the right balance between national security and public protection and the rights to safety and privacy of personal data. The ID cards legislation is a measure without equal in gathering large quantities of personal data from members of the public not suspected of any wrongdoing, which added insult to injury somewhat by requiring them to pay £30 for the privilege.

On cost, the previous Administration expended a total of £251 million. This went on projects to establish identity cards, passports with a second biometric feature and other related programmes. Prior to that, the Home Office spent an additional £41 million developing the policy, legislation and business case for the introduction of identity cards. Furthermore, it was estimated that a further £835 million would have to be spent on the national identity scheme by 2018. This is a huge waste at a time of financial stringency.

When promoting ID cards, the previous Government indicated that the existing and proposed spend was an investment and that the return from ID card sales would recoup taxpayers’ money, but the reality has been different; £251 million to issue 12,000 chargeable cards might be called reckless, which is why we have stopped all spending on the scheme and closed down the existing card-issuing operation, pending the outcome of parliamentary consideration of this Bill. We anticipate savings of £86 million over the next four years through cancellation.

Your Lordships will be aware from consideration of the Bill in the other place that there was a great deal of debate on the issuing of refunds or the provision of discounts or credits against future passport applications. The cost of providing refunds would be in the region of £400,000, which is not a trivial sum. We have come to the conclusion that it would not be right for the taxpayer to foot this bill and to add to the already excessive spending on the scheme.

We realise that some people who spent £30 for a card with a 10-year life expectancy will be disappointed that it will be cancelled later this year without any refund, but those who chose to buy a card did so in the full knowledge of the unambiguous statements by the coalition parties that the scheme would be scrapped if we came to office. They cannot now expect taxpayers to bail them out.

[Lord Hunt of Kings Heath]

My Lords, is the Minister saying that it is a general principle that members of the public are meant to read through the manifestos of all the parties before making a decision, and that that decision is at risk if another party wins? That is an extraordinary argument.

[Baroness Neville-Jones]

My Lords, citizens have to be aware of what is going on around them. It was clear that this scheme would have a risky future ahead of it. I shall deal in a moment with one or two of the other points that were implicit in the noble Lord’s question.

Another idea that was advanced in Committee in the other place was to allow existing cards to remain valid until expiry. That would have required maintaining the infrastructure for the next 10 years or so—another problem. The cost of so doing would have been in the estimated region of between £60 million and £80 million, and we do not consider that spending at that level is justified.

My final point on refunds relates to the statutory basis for the issue of ID cards. There is no contract here; an identity card has been provided in the context of a statutory framework and is not available for the remedies that might be forthcoming where an agreement is governed by contract or consumer law.

The 2006 Act makes no provision for a refund policy, either in the case of early cancellation of the scheme or withdrawal of the card by the issuing authority, or by the individual who simply wishes to get out of the ID card scheme. There has been no provision in the law.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am not sure where I would categorise myself in my noble friend’s interesting description of the opposition Front Bench. We have certainly had an interesting debate on the Second Reading of the Bill. As my noble friend Lord Bach said, we recognise that the proposals before us were contained in both the Conservative and the Liberal Democrat manifestos. We certainly do not seek to oppose the Bill. However, as we have heard from this debate on Second Reading, there are several important matters that we will want to scrutinise thoroughly when we move into Committee.

First, I will respond to the remarks of the noble Baroness, Lady Neville-Jones, and others, in suggesting that the previous Government’s approach to ID cards indicated what has been described as a cavalier approach to the rights of the citizen. My party well understands the importance of the individual liberty of our citizens. It was the previous Government who signed up to the ECHR. We passed a series of equality Bills which added to the individual rights of our citizens. We brought forward freedom of information and data protection legislation. We were and are committed to the individual rights of our citizens. We also understand the responsibility of government to protect the security of citizens. As my noble friend Lord Bach suggested, we saw ID cards as a potentially valuable contribution to our national security. The noble Baroness, Lady Neville-Jones, is extremely experienced in these matters. At one time she, too, saw the advantages of ID cards. Will she explain, when she responds, how she thinks the Government can effectively protect identity in today’s circumstances?

I also suggest that several speakers have rather overlooked some of the benefits of the voluntary ID card scheme as a convenient, reasonable and affordable way for citizens to assert their identity, as well as being a lightweight and easy-to-use valid travel document in Europe. I should have thought that that is an answer to the noble Lord, Lord Selsdon—on the practicalities at least, if not on the substantive question that he put to the Minister. I look forward to hearing the response.

My noble friend Lord Maxton clearly described the divide between those who carry ID information and those who do not. I think he was suggesting that the technological gap matches the wealth gap in our nation. It is unfair to scrap the cards immediately with no capacity to offer compensation. A number of noble Lords have referred to that matter, and it was also discussed at length in the debate on the Bill in the other place. On Report, the Minister, Mr Damian Green, said that offering compensation or credit to the value of £30 against the purchase of a new passport would be unfair to taxpayers. One has to set that alongside the answer given by the Home Secretary, Mrs Theresa May, who said:

“People knew well before the election what would happen if a Conservative Government were elected”.—[Official Report, Commons, 9/6/10; col. 346.]

That will not do. Is it really suggested that members of the public should plough through each party’s election manifesto, determine that their investment is at risk if a certain party is elected and estimate which party is likely to be elected? I have the three manifestos with me. I would not describe them as a good read but they are weighty documents. Are we seriously suggesting that members of the public have to plough through them? I do not think so. As someone who has lost a few votes in your Lordships' House, I say to the Minister that if ever an issue united the House against her, I suspect that this is it. I should have thought that this matter warrants further consideration between now and Report.

I ask the Minister to clarify the costs. We are told that £835 million will be saved. However, if you delve into the facts of the case, you discover that this figure arises from a total cost figure and that it was planned to recover the costs through future fees to ID card purchasers. My reading of the documentation is that after year three there will be no benefit to the taxpayer and that the actual savings are far less than £835 million. I ask the noble Baroness to clarify that point further.

I should also like the noble Baroness to reassure me about the destruction of the data on the national identity register. Whatever the debate about that register, the fact is that Mr Damian Green said in the other place that destruction would take place—indeed, I think that the Bill makes it clear—

“within two months of Royal Assent”.—[Official Report, Commons, 15/9/10; col. 946.]

I should like to hear from the Minister exactly how that destruction will take place. It is right that the House should have that information. I do not think that the matter is as simple as it might sound. I should also like to know what independent verification there will be so that Parliament can be assured that the data have indeed been destroyed. My understanding is that the identity register is on two separate databases and that each database also contains other information for other purposes which will need to be retained. How the information will be deleted and how this process will interact with other material stored on the relevant databases are points of detail which merit further clarification.

I noted what the noble Baroness had to say regarding biometric passports. She said that the UK’s progress towards biometric passports of a standard comparable to those in the rest of the EU and, increasingly, other countries is clearly in jeopardy. The Government’s decision to scrap the NIR and halt development of the UK passport will surely leave British citizens out of step with much of the rest of the world. Is that the case? What are the implications of that in the longer term? As a result, will it not be harder for British citizens to travel with ease? The British passport is one of the most respected documents in the world. Can the noble Baroness reassure me that this policy will not put that at risk? I thought that my noble friend Lord Maxton spoke eloquently about that issue.

As I and my noble friends Lord Bach and Lord Brett have said, we will not oppose the Bill. However, we will join other noble Lords in carefully scrutinising this legislation, and we will certainly press the case for compensation for current holders.

[Baroness Neville-Jones]

My Lords, we have had an interesting and wide-ranging debate. My first point is that the various speeches have shown a philosophical divide in the House between those who think that it is a good idea for the state to amass information about citizens and that this is somehow empowering, and those who think that it is a good idea for the state to have as little as is necessary for the discharge of its duties and functions. That is one of the things that divide us regarding the national register and it lies at the heart of the way in which this scheme was constructed.

The Benches opposite challenged me personally on why I had changed my view. I will tell them. My reasons were expressed more eloquently than I can put them by the noble Lord, Lord Shipley, who raised all the charges that one could about the flaws in the system, and he was right. This national register would have contained up to 50 items about individuals. That is a very large amount of information and would have included ephemeral details such as one’s address. A constant process of change would need to have taken place and there would have been a penalty for failing to provide the information.

Some noble Lords mentioned the view of Microsoft. It was Jerry Fishenden, an expert in this area, who said that bringing together in a single place all this information about the citizens of this country was a great honey pot and that the likelihood of it being invulnerable to attack and hacking was zero. Those were the moments when I began to have very serious doubts about the wisdom of this scheme, and the more I saw of it the less I liked it. It is partly for practical, but also for many philosophical, reasons that I concluded that the scheme was a bad idea.

The history of the way in which the previous Government’s thinking evolved was spelt out by other Members of the House, and I will not go into that again. Various arguments were put forward and eventually the scheme turned from being a good security precaution into being a good entitlement route. Part of the difficulty shown in defending this was the fact that the previous Government had constantly to change their justification for this extremely expensive scheme. I repeat that it is extremely expensive and it is quite right to say that it was to be the only one of its kind. One could have imagined that every time a swipe was made and the register had to incorporate a transaction—because it was going to be used in that fashion—the number of transactions would undoubtedly have crashed the system.

The design had many flaws. It also has limited validity and limited use because, as was rightly pointed out, the area of online fraud and losses, which increasingly is where identity authentication is needed and where fraud is taking place, would not have been helped at all by the existence of this register. So the design did not deal with one of the main areas where identity authentication was needed.

The noble Lord opposite asked how we would deal with identity issues. I entirely take the point that they are very serious and that further work and protection are needed. However, I am quite clear that the national register as it was constructed, with its associated card, was not the route to go down to get that degree of identity assurance.

Some noble Lords also raised the question of whether we would retain any of the technology that has been developed in relation to second-generation passports. As I said, the Government take the view that it is not necessary for the security of the British travel document, which we all agree is of high-quality, that it should incorporate second biometric data. Most Schengen countries are going down the route of asking for fingerprints. We are not going to do that and a large number of other countries are not going to, either. We do not take the view that there will be any barrier to the acceptability of our document. We also believe that other ways of increasing the security of the biometric data such as facial imaging, which we can certainly do at much less cost, are the way to go. Having said that, we will retain the technology in the Identity and Passport Service to ensure that, should we need to use it or should it be useful, we will have it available. However, we do not consider that it is needed as things stand.

Several noble Lords asked about how the destruction of information would be done and whether we could be sure that it would be done. It is a very important issue. As has been said, all biometric data and the vast majority of the personal data will be destroyed within two months of enactment. We have shared our approach with the Information Commissioner's Office, which is satisfied that all areas have been covered. The data destruction will be handled in accordance with the decommissioning guidance issued by the Cabinet Office and by the information assurance arm of GCHQ, the CESG. I believe that I am right in saying also that my honourable friend the Immigration Minister in the other place said that he would report to the House. I, too, am very happy to report to this House on the destruction process. We entirely agree that if we say we are going to do that, the public must be assured that it is happening. That will be a systematic process. We will not allow data that should no longer be legally held to be held by the Government.

Some noble Lords also raised the question of the power under the Act to sell data. Perhaps I may clarify that. Section 12 of the Act provides for the Identity and Passport Service to provide information to third parties for verification purposes. This permits the Secretary of State, under that power, to supply information to a person registered under the Act. The provision of this information requires the consent of the individual: at least that is a relief. For example, they may be applying for goods and services, which is why the information about them is required. Section 35 allows for a fee to be charged for the application of this provision, so one can see the intention potentially to make this a profit-making possibility for the Government. Our anxiety would have been about whether the information being provided was always accurate.

Some noble Lords asked whether there was an anomaly between our desire and intention to abolish the identity cards system and register and our continuation of biometric permits for foreign workers in this country. In fact, the latter is an EU requirement and, obviously, we undertake to continue to maintain our EU obligations. These are residence permits; they are not identity documents.

On costings, I cannot supply an immediate answer to the question raised by the noble Lord opposite. Our figures are very different, but I will write to him on that subject, as I realise that it is important to have clarity.

[Lord Hunt of Kings Heath]

The point is that most of the long-term cost would have been met by people paying the cost of the card. It is rather inaccurate to give a globalised figure and to say that that is the total cost.

[Baroness Neville-Jones]

The fact is that there is significant sunk investment and there would have been future costs if we had operated the system. Those future costs will now not be incurred.

Here is more precision on the point that the noble Lord has just raised. In October 2009, the cost report provided the figure of £835 million for future investment. Noble Lords will be aware that fewer than 15,000 cards have been issued, which has been against an investment of £292 million. The difficulty is that one cannot be as confident as the noble Lord that the costs would be recouped from fees. Irrespective and independent of the attitude of the Opposition at the time, which I am sure acted as a dampener on the general public’s enthusiasm to purchase a card, it was clear that the public were voting with their feet. A total of 12,000 cards is not a large number of applicants.

Education: Overseas Students

Lord Hunt of Kings Heath Excerpts

Wednesday 13th October 2010 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, does the noble Baroness acknowledge, contrary to the point of view put by the questioner, that in fact the previous Government took action against unscrupulous course providers through the sponsor licensing system? Can she say how many education providers were closed as a result of those actions?

[Baroness Neville-Jones]

My Lords, the previous Government certainly began to put measures in place. This Government have built on those measures, very much strengthened them and are still evaluating whether we have strong enough measures in place. If we want to take further measures, we shall announce them before the end of the year. As to the numbers, 220 institutions have been suspended since the tier-4 system put in place by this Government took effect; 53 of those are permanent suspensions and 78 are still under evaluation. Real measures are being taken—with teeth.

Immigration: Detention of Children

Lord Hunt of Kings Heath Excerpts

Monday 11th October 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I am aware that this figure of a fortnight has got around to being perceived as some sort of deadline, whereas a fortnight is the absolute minimum period that the families are given to consider voluntary return. I do not want to set a timetable for the other end. We would obviously like to achieve a high rate of voluntary return which would take place as soon as was possible and at the least cost to the taxpayer.

[Lord Hunt of Kings Heath]

But, my Lords, the noble Baroness has not answered my noble friend. The coalition agreement states that the Government will end the detention of children for immigration purposes. Her honourable friend Damian Green said on 6 September in the other place that the policy was to minimise the detention of children. Why the change in policy?