Earl of Erroll
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Identity Documents Bill
Earl of Erroll Excerpts(13 years, 7 months ago)
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.