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John Robertson (Glasgow, Anniesland) (Lab): I wish to speak to amendment No. 155, which would introduce the opportunity for the Secretary of State to set out by regulation procedure governing circumstances where an individual is unable to provide certain biometric data on medical grounds. Clause 41(4) states:
''Subject to subsection (7), every power conferred by this Act on a person to make an order or regulations includes power—
(a) to make different provision for different cases;
(b) to make provision subject to such exemptions and exceptions as that
I seek assurances from the Minister on the treatment that the Government envisage for groups of people who may require different provision for different cases, such as disabled people and, more specifically, those with visual impairment.
The Royal National Institute of the Blind has made a few points on that. The Bill does not explicitly set out procedure for dealing with the collection of biometric data from blind and partially sighted people. I can envisage a number of circumstances where such a procedure could be required—for example, when registering people who have sight that is sensitive to
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light and who experience disorientation and extreme discomfort in bright-light conditions. That is relevant because the collection of iris scan data can require shining light into the eye to collect the appropriate data. That may be painful for those with light-sensitive sight conditions, and it would clearly be unreasonable to ask them to endure it.
In addition, many blind and partially sighted people have problems that affect the iris and give rise to distortion in that area, which may make it inappropriate to try to gather iris scan data, as it will not be of sufficient quality. The amendment would give the Secretary of State power to introduce regulations governing the basis on which the failure to provide biometric data on these and other grounds would be acceptable, subject to any conditions the Secretary of State thinks necessary.
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That brings me to a second point—the conditions that the Secretary of State might require to be met to prove that a genuine reason existed for not being able to provide the biometric data. Any conditions relating to the iris scan data might require a letter from the relevant medical practitioner verifying the grounds stated by the person for the failure to provide biometric data, such as light sensitivity or other sight problems. However, conditions surrounding exemptions could be set out in regulations, and the Secretary of State might want to consult the relevant organisations. If medical certification has to be provided to allow an individual not to have to provide the biometric data, would they be required to pay the costs of obtaining the medical certificate or would the ID card scheme provide for that?
The RNIB has told me that these scenarios will happen: they are not mythical cases; they exist. I ask the Minister to tell me what the Government propose to do and to give me his comments.
Mr. Allan: It will be helpful to set out briefly the framework of our concerns, instead of going into greater detail, as we did fairly comprehensively on earlier groups of amendments. There are no absolutes when dealing with personal data. There is a spectrum of concern, which will depend on various things. It depends on the sensitivity of the personal data: clearly some personal data are more sensitive than others.
As the Minister said, some data, such as telephone directories, are already public. There are other sensitive personal data, such as medical records. It depends on the circumstances under which the data are obtained and built into the data protection principles that govern the way in which the Government will manage the data. Data obtained with explicit consent are considered to be different from data obtained in other ways. We are talking here about data that will eventually be obtained by compulsion, with quite serious sanctions associated with the failure to provide them.
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The level of concern depends on the spectrum of harm that can be caused by the misuse of the data, whether it is deliberate, malicious misuse or simply a negligent approach. In this regard, the concerns that have been raised are extremely valid. The Minister referred earlier to the example of store cards. This is where the store card analogy breaks down. The relationship between the individual and the state is utterly different from the relationship between an individual and a supermarket. That goes without saying. An individual who wants to obtain a passport can do so only via the agency of the UK Passport Service. If they do not like it, they cannot go to the French passport agency and obtain one. In many cases, the UK is the one-stop shop. Therefore, it is completely different from an environment such as a supermarket, where alternatives are available.
The state, however, also has significant additional powers. As we go through the Bill, the areas in which the ID card can be used are so broad that we must accept that the potential harm that can be caused to an individual by inaccurate data will be across a broad spectrum in a way that is not comparable with the potential harm of somebody knowing that someone has a cat or that someone has a baby because they have been buying nappies. The harm that can be caused by negligent or malicious use of such data is on a different scale where border control, access to public services and, in particular, criminal law enforcement activity are involved.
The safeguards that we have are the ones spelt out in the Bill. That is why, through our amendments in this group and elsewhere, we have sought, in a grumpy way, continually to knock out any provision saying the Secretary of State can modify something by regulation, because such provisions reduce our ability to scrutinise the safeguards in place. They mean that we have to depend on the good faith of the Secretary of State. I understand that Secretaries of State always say that they will not introduce regulations that are out of order, and they always say that we have secondary legislation powers, but it is natural that we might want to try to beef up the safeguards, as we have tried to do throughout our consideration of the clause.
The second safeguard in relation to the clause is the Data Protection Act 1998. The debate has focused on the interaction between that Act and the Bill, because it seems to be the fundamental piece of legislation that we are told we need to rely on. That is why the opinions of the Information Commissioner, which the hon. Member for Woking has gone through, are significant, and we have to listen to them. We are in a non-constitutional country. The position of Information Commissioner evolved through law, rather than being set out in a statute or a constitution of the United Kingdom that spells out the position.
We are groping. As the Government bring out different pieces of legislation, we have to test their relative powers against each other. We will not get any certainty on the subject for some time, but we need to take seriously the opinions of those who have the relevant expertise, such as the Information Commissioner.
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Mr. Browne: Before the hon. Gentleman moves off that point, he is surely not arguing that countries with a written constitution do not have to go through the process of testing competing provisions, and of comparing their relative merits and ensuring their balance. That is exactly what happens in France, Italy and other countries that have written constitutions. Whether or not a country has a written constitution makes no difference to that.
Mr. Allan: This is a large area of political theoretical debate, and I shall not go into it. Suffice it to say that the way in which the tests occur are different in common law countries and constitutional countries. A constitutional country will have a constitutional court that decides whether a provision breaches some fundamental right set out in the constitution. Ours is a different tradition, but sometimes we have a more complex equation to work out when considering individual pieces of legislation, because we have to test the whole gamut of Acts that may interact with each other in a common law scenario, rather than consider legislation against a specific set of constitutional provisions. However, I recognise that the Human Rights Act 1998, and, in particular, article 8 of the European convention on human rights—the right to privacy—as well as issues such as the necessity of proportionality are perhaps starting to give us a clearer framework.
We have explored all the items in schedule 1, and I welcome the fact that the Minister said that he would give us further clarity on issues such as addresses. It would be helpful to have an example record before us as we consider the Bill, because we are talking about something that we have not seen yet. The Minister sometimes says, ''Well, it's not going to be like that'', but we have to guess what the record will be like, because we have not been given any examples of what the Government expect it to be like. Whether we are talking about 51 items or 57 varieties of ID card, it would be helpful to have a clear example of what the Minister intends. We will not necessarily hold him to the example, as he may want to change his mind later, but some suggestion would be extraordinarily helpful.
There are some basic principles: the more complex we make the system, the more costly and potentially intrusive it will be. We have sought throughout our proceedings to simplify it. If the Minister is to reject our amendments taking away secondary legislation powers, I hope that he can at least give us assurances that he does not intend to use them to depart radically from what is in schedule 1. Otherwise, it would completely devalue the primary legislative process that we are going through today.
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