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Mr. John Bercow (Buckingham) (Con): Further to that point of order, Mr. Deputy Speaker. I seek your guidance. Is it not important for us to know exactly when the Government's response to the Joint Committee's report was deposited in the Vote Office? If information is supposed to be available before the debate, surely considerations of reasonableness must apply. Did the Government intend to put the response in the Vote Office only today? Was that an insult, incompetence, or a combination of the two? I think that we ought to be told.
Mr. Deputy Speaker: That is not a matter with which I can deal precisely at this time. I repeat what I said earlier—that all Government documents necessary for the debate ought to be available to all hon. Members before the debate starts. I think that we should now proceed, as time is limited today.
Mr. Alex Salmond (Banff and Buchan) (SNP) rose—
Mr. Deputy Speaker: No, we have dealt sufficiently with that matter for the time being. If the Government have not done something that they should have done, that will obviously be looked at later.
Mr. Malins: Thank you, Mr. Deputy Speaker. I should be extremely grateful if, at the end of this debate, we can have Divisions on new clause 4 and amendment No. 26. I shall speak to the latter in a moment.
The debate has been under way for a little while, and it is time for me to pay tribute to my hon. Friend the Member for Buckingham (Mr. Bercow). On Second
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Reading, he had something to say about the commissioner. I pause only to remind the House that clause 24 was not debated at all in Standing Committee, even though it is the vital clause that deals with the appointment of the national identity scheme commissioner. Neither was clause 25 debated in Committee, but on Second Reading my hon. Friend very properly expressed his disappointment that the Bill made it clear that the commissioner's report
"can, and probably will, be doctored by the Secretary of State before being presented to Parliament".
"Does that not underline our anxiety that the commissioner will prove to be but a craven lickspittle of the Government?"
He was right to draw our attention to that issue. My right hon. Friend the Member for Haltemprice and Howden (David Davis) said that he had
"a prejudice in favour of the commissioner reporting to the House rather than to the Government".—[Official Report, 24 December 2004, Vol.428, c. 1958.]
What is the effect of my new clause and the associated amendments? Clause 25 provides that the commissioner must make a report to the Secretary of State about the carrying out of his functions. Clause 25(3) states:
"The Secretary of State must lay before Parliament a copy of every annual report made to him under subsection (1)."
So far, so good. However, the tricky bit comes next. Clause 25(4) states:
"If it appears to the Secretary of State, after consultation with the Commissioner, that the publication of a particular matter contained in an annual report . . . would be prejudicial to national security,"—
and the House should mark the next words—
"the continued discharge of the functions of any public authority, or . . . would be otherwise contrary to the public interest"
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Does my hon. Friend agree that the phrase
is couched in such wide language as to have no meaning other than that the Secretary of State may do as he pleases?
Mr. Malins: My right hon. and learned Friend is right. I hope that the Minister will correct me if I am wrong, but the clause seems to give the Secretary of State the power to say, "I don't want Parliament to know about this bit of the report. I don't have to justify it on grounds of national security. I can catch this point under any of these little subsections." Frankly, I am not happy about that.
New clause 4 offers a different way to proceed that would avoid the House getting a watered-down report. As a general proposition, it is impossible to review the Secretary of State's actions independently and properly if the commissioner's reports to Parliament are filtered by him. For that reason, the new clause would establish an alternative scrutiny mechanism under the Freedom of Information Act 2000. New clause 4(2) identifies the
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commissioner as a public authority under that legislation, and there is no obvious dispute about that. Proposed new subsection (3) would disapply the exemption in the 2000 Act relating to the formulation of Government policy, as well as the prejudice to effective conduct by public affairs. It means that legal advice in relation to human rights and the ID card could be accessible to people who request it. The reason for that is that the Government, as the Joint Committee has shown, cannot be trusted on human rights issues.
New clause 4(4) would remove the absolute national security exemption, mainly because the service has, for example, secret access to details on the register under paragraph 9 of schedule 1. I commend the House to examine that paragraph.
My proposed change would not jeopardise national security, as the 2000 Act contains an additional, non-absolute national security exemption that can be used case by case. In short, new clause 4 would set up a new mechanism that would allow the House of Commons to have access to some information to which it would not have access otherwise but which may be very important. There is no intention to jeopardise national security, to which the new clause poses no threat. All we seek is a method whereby more information can be made available to parliamentarians.
Mr. Bercow: Clause 25 is a recipe for the exercise of ministerial fiat. The new clause that my hon. Friend the Member for Woking (Mr. Malins) has commended to the House is absolutely indispensable to provide a brake on the use and abuse of Government power, and I warmly welcome it.
My hon. Friend's words about my little intervention on Second Reading were generous. I am thoroughly depressed about this obnoxious and distasteful Bill, but as a result of his characteristic generosity, I shall go about my business for the rest of the day with a glint in my eye and a spring in my step that would otherwise have been lacking.
Mr. Malins: If I have brought a glint to my hon. Friend's eye and a spring to his step, I —
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): Apologise!
Mr. Malins: Well, if my comments have caused those reactions in my hon. Friend the Member for Buckingham, I am delighted. It is probably my most useful act of the day.
Mr. Hogg: Should the Minister decline to accept the new clause, would my hon. Friend consider advising colleagues in the other place to delete the phrase
and paragraph (b)? Does he agree that if those amendments were made, subsection (4) would be less offensive?
Mr. Malins:
My right hon. and learned Friend is right. The other place will certainly consider that message. He has made an extremely valid point.
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I am conscious of the time and want to make two further points. First—my right hon. and learned Friend touched on this—it would be better if those offensive parts of clause 25(4) relating to the
"discharge of the functions of any public authority, or . . . otherwise contrary to the public interest"
were removed from the Bill, because we do not want to give the Home Secretary carte blanche to do what he likes without the House of Commons knowing about it.
My second point relates to amendment No. 26, which is simple and essential. It would change the clause so that instead of stating that
it would require the commissioner to
That is essential, which is why I hope that all hon. Members will support my amendment.
There is a further minor amendment. In Committee we debated the cost of the scheme as much as we could—we were heavily curtailed—but never received a satisfactory answer. One of my amendments in Committee, which is now amendment No. 24, relates to the appointment of the national identity scheme commissioner. Clause 24(6) requires the Secretary of State to
"provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions."
I pause only to say that at no stage have we been reassured about how many members of staff would be employed by the commissioner. My probing amendment suggests that it should be limited to 10, but it is only a probing amendment. Why would I probe? The answer is simple—it would be helpful when looking at the cost of the whole scheme to know what the cost of the commissioner and his staff will be. At the end of the day, someone must pay. There was an exchange in Committee when the Minister said that the issue had very little to do with taxpayers' money because the burden would be on the individual to pay for the service—[Interruption.] Well, if I have misquoted him, he will put me right, because he will have a chance today to speak to the House. He has not had that chance yet, but I hope that he will.
3.15 pm
The national identity scheme commissioner should have broad and strong powers, and they should be wide-ranging and not limited. The commissioner should have greater powers to take any steps that he or she wants to take in relation to the scheme, even to the extent of receiving complaints from individuals about the way in which it is running. I do not want his powers to be limited. That is the genus of our amendments.
I am certain that any decent Government—I hope that this Government are decent—would accept the proposition that the commissioner should report direct to the House of Commons and would also accept that while matters concerning national security should perhaps be kept from the House, that is the limit of what should be kept back. Matters should not be excluded just because it suits the Secretary of State for us not to hear about them, otherwise there would be yet a further diminution in our influence and power. I hope that the
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debate on my new clause and amendments will produce some interesting arguments during the amazingly short time left to us.
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