Clause 21: Use for correcting inaccurate or incomplete information

137     This clause provides a power to provide information from the Register to a person or organisation who has supplied information (including but not only information provided under clause 11) to help verify an entry in the Register where information provided proved to be inaccurate or incomplete.

138     Subsection (1) sets out the circumstances in which information may be provided under this clause. Subsection (2) provides a power to provide to the person providing the information any inconsistencies between it and the information recorded on the Register, provided that clause 23 is complied with (Subsection (3)).

139     Subsection (4) defines what is meant by providing information about an individual for verification purposes.

Clause 22: Power to authorise other uses of information

140     This clause provides (Subsection (1)) that where there is no authorisation under clauses 19 to 21 the Secretary of State may provide information without consent where an order has been made specifying or describing the information, to a public authority so specified or described, for purposes so specified or described and any requirements under clause 23 are complied with. The Secretary of State's power to authorise the provision of such information is restricted to circumstances where the provision is necessary in the public interest (Subsection (2)). This order (Subsection (3)) is subject to an affirmative resolution procedure. The information which can be provided is limited to information not falling within paragraph 9 of Schedule 1 (the audit trail information).

Clause 23: Rules for using information without individual's consent

141     Subsection (1) provides that provision of information in paragraph 2 of schedule 1 (photograph, signature, fingerprints or other biometric information) under clauses 19 to 22 may only be authorised where the Secretary of State is satisfied that it was not reasonably practicable for the person to have obtained the information by another means. For example, if fingerprint information is recorded on the Register, the police would first have to search their own fingerprint records before requesting information to be provided from the Register.

142     Subsections (2) to (4) allow the Secretary of State to make regulations imposing requirements such as specifying the person or persons who may make any request for information and how it is to be made and authorised before any information is provided under clauses 19 to 22.

143     Subsection (5) allows the Secretary of State to make regulations setting out the rank office or position of people who would be authorised to receive information on behalf of those persons listed in clauses 19 to 22. For example, a police officer of a specified rank may be authorised to be provided with information on behalf of a chief officer of police. Regulations under clause 23 will be subject to affirmative resolution procedure (Subsection (6)).

Supervision of operation of Act

Clause 24: Appointment of National Identity Scheme Commissioner

144     This clause establishes a National Identity Scheme Commissioner to oversee the operation of the identity cards scheme and the National Identity Register including the uses to which ID cards are being put and the provision of information held on the Register.

145     The Secretary of State is under the duty to appoint a National Identity Scheme Commissioner under subsection (1). Subsection (2) sets out the functions of the Commissioner. Subsection (3) sets out the matters which will not be part of the Commissioner's functions such as appeals against civil penalties, which will be dealt with by the civil courts, criminal offences which will be dealt with by the criminal courts, and the verification powers for passports under clause 39. The provision of information to the intelligence and security agencies would also not fall within the remit of the Commissioner but would be under the jurisdiction of the Intelligence Services Commissioner as set out in clause 26.

146     It is the duty of every official in the Secretary of State's department to provide the information the Commissioner requires to carry out his functions (Subsection (4)).

147     Subsection (5) sets out that the Commissioner should hold office in accordance with the terms of his appointment and provisions should be made for him to be paid such allowances as the Treasury may determine out of money provided by Parliament.

148     Under Subsection (6) the Secretary of State is under a duty, after consultation with the Commissioner, and subject to the approval of the Treasury as to numbers, to provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions. The Commissioner will be a public authority for the purposes of the Freedom of Information Act 2000.

Clause 25: Reports by Commissioner

149     Under subsection (1) the Commissioner is under a duty to report each year to the Secretary of State. There is also provision at Subsection (2) for the Commissioner to report at any other time regarding any matter related to the carrying out of his functions.

150     Under subsection (3) the Secretary of State is under a duty to lay before Parliament every report received from the Commissioner. Where the publication of a particular matter in a report would be prejudicial to national security or the prevention and detection of crime, it may be removed from the report laid before Parliament. In those circumstances, in accordance with subsection (5), the Secretary of State would need to lay a statement before Parliament that a matter had been excluded.

Clause 26: Jurisdiction of Intelligence Services Commissioner and Tribunal

151     This clause amends the Regulation of Investigatory Powers Act 2000 which sets out the functions of the Intelligence Services Commissioner and the Investigatory Powers Tribunal to add to their functions, oversight of the provision of information held on the Register to the intelligence and security agencies as defined in that Act.

Offences

Clause 27: Possession of false identity documents

152     This clause creates new criminal offences related to possessing false identity documents. Subsections (1) and (2) set out the circumstances in which a person is guilty of an offence if he is in possession of a document which he knows or believes to be false or improperly obtained, or to relate to someone else. To be guilty of the offence the person must have the intention that the document be used for identity fraud.

153     Subsections (3) and (4) create a similar offence in relation to the possession of equipment which is designed or adapted for making false identity documents. Subsection (6) sets out the maximum penalties for such offences as being 10 years imprisonment or a fine or both.

154     Subsection (5) makes it an offence for a person to have in his possession, without reasonable excuse, a false or improperly obtained document, a document relating to someone else, or equipment used for making false identity documents. These offences apply irrespective of any intent to use the documents or equipment. Subsection (7) prescribes a maximum penalty of 2 years imprisonment, a fine or both.

155     Subsection (8) defines the meaning of false and improperly obtained for the purposes of this section.

156     Subsection (9) states that the definition of "false" in subsection (8)(a) does not apply on the application of this section in Scotland because Part 1 of the Forgery and Counterfeiting Act 1981 does not apply in Scotland.

157     Subsection (10) applies the definition of "identity document" in clause 28 for the purposes of these offences.

Clause 28: Identity documents for the purposes of s. 27

158     Subsection (1) defines what is meant by an "identity document" and includes an ID card as well as other identity documents. This list may be amended by an order subject to an affirmative resolution procedure (subsections (4) and (5)).

159     Subsection (2) defines what is meant by an "immigration document".

160     Subsection (3) defines what is meant by a "UK driving licence".

Clause 29: Unauthorised disclosure of information

161     This clause creates a new criminal offence of disclosure without lawful authority of information held on the National Identity Register.

162     Subsections (1) and (2) set out the circumstances under which a person is guilty of such an offence.

163     Subsection (3) defines what is meant by "lawful authority" for the purposes of this clause including if it is authorised by this legislation or required by a court order.

164     Subsection (4) states that a person has a defence if he can show that he believed, on reasonable grounds, that he had lawful authority to disclose the information.

165     Subsection (5) sets out the maximum penalty for the offence as 2 years imprisonment or a fine or both.

Clause 30: Providing false information

166     This clause creates a new offence of providing false information for purposes connected with securing an entry or modification of an entry on the Register or obtaining for himself or another person an ID card.

167     For the purposes of this clause, false is defined in clause 43. Subsections (1) and (2) set out the circumstances under which a person is guilty of the offence if he knows or believes the information is false or is reckless as to whether or not it is false. Subsection (3) sets out the maximum penalty for the offence as 2 years imprisonment, a fine or both.

Clause 31: Tampering with the Register etc.

168     This clause creates an offence of tampering with the Register. Subsection (1) defines the offence as engaging in any conduct that causes an unauthorised modification of information in the Register. Subsection (2) defines the requisite intent for the offence as intending to cause a modification of information, or being reckless as to whether or not the conduct will cause such a modification. Subsection (5) defines an "unauthorised modification" as taking place if someone is not himself entitled to determine if the modification is made, or he does not have a consent to the modification from a person who is so entitled. Subsection (6) provides a defence where the maker of the unauthorised modification reasonably, albeit mistakenly believed he was authorised to make it. Subsection (9) provides that conduct includes acts and omissions, and modification includes a temporary modification.

169     Subsection (3) makes it clear that modification of information includes cases where someone's conduct contributes to the modification of information, or where it makes it more difficult or impossible for such information to be retrieved in a legible form, or where the conduct contributes to making the retrieval more difficult or impossible.

170     Subsection (4) makes it clear that it does not matter whether any or all of the relevant conduct took place in the United Kingdom or whether the person concerned was a British citizen or not.

171     Subsection (7) gives the maximum penalty for the offence as imprisonment for a term not exceeding ten years, or a fine, or both.

Clause 32: Consequential amendments relating to offences

172     Subsection (4) makes the offences under clauses 27 (5), 29 and 30 arrestable in Northern Ireland.

173     Subsection (1) extends the usual jurisdiction of the courts in England and Wales for the offences in clause 27. Subsection (5) extends the usual jurisdiction of the courts in Northern Ireland for the offences in clause 27.

174     Subsection (2) adds the false documents offence (clause 27) to section 31(3) of the Immigration and Asylum Act 1999 giving a specific defence for refugees with false documents. This is of particular relevance as those who destroy any false documents will commit an offence under section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

175     Subsection (3) adds the false documents offence (clause 27) to section 14(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This gives immigration officers power to arrest without warrant for the offence and ancillary powers to search for and seize documents.

Civil penalties

Clause 33: Imposition of civil penalties

176     This clause sets out the way in which civil penalties under the identity cards scheme will operate.

177     Where the Secretary of State is satisfied that the person is liable to a civil penalty as set out in the legislation, the Secretary of State may issue in the prescribed manner a notice to the defaulter, setting out why the penalty is being imposed, the amount of the penalty, the date by which the penalty must be paid, how payment should be made, setting out the steps the defaulter may take if he objects and finally explaining the powers to enforce the penalty (subsection (3)).

178     The date by which the payment must be made cannot be less than 14 days after the notice is issued (subsection (4)).

179     The penalty imposed by this clause, must be paid in the manner described by the notice and if it is not paid, the amount is recoverable by the Secretary of State via the civil courts. When recovering the penalty no question may be raised as to whether the defaulter was liable to the penalty, whether the imposition of the penalty was unreasonable or as to the amount of the penalty. Those matters should be raised on an objection to the Secretary of State under clause 34 and/or an appeal to the civil courts under clause 35.

Clause 34: Objection to penalty

180     Clause 34 sets out the steps to be taken if the recipient of the notice objects.

181     A recipient of a notice may give notice to the Secretary of State that he objects to the penalty. This must include what he objects to and why. This "notice of objection" must be made in the prescribed manner and before a date to be prescribed (subsections (1) and (2)). The grounds on which an objection can be made are that the person was not liable to it, that the circumstances of the contravention make the imposition of a penalty unreasonable, or that the amount of the penalty is too high.

182     If this procedure is complied with, the Secretary of State will determine whether or not to: cancel the penalty; reduce it; increase it; confirm it (subsection (3)). The Secretary of State must not enforce a penalty of which he has received a notice of objection, until he has considered the objection.

183     This notification of outcome must be given in the prescribed manner, by a prescribed date or if the objector agrees by the end of a longer period.

184     If, after consideration, the Secretary of State increases the penalty, a new notice must be issued under clause 33. If the penalty is reduced, the objector must be notified accordingly.

Clause 35: Appeals against penalties

185     This clause sets out the process of appealing against penalties. Under subsection (6) a person does not have to object to a penalty under clause 33 before making an appeal to the court under this clause.

186     The grounds of the appeal are set out in subsection (1). They are the same as the grounds for making an objection under clause 34. Subsection (2) ensures that there will be a time limit to any appeal.

187     The appeal will be a re-hearing of the decision of the Secretary of State to impose a penalty (subsection (4)). Under subsection (5) the court may consider all matters it considers relevant.

188     The Court may decide to cancel the penalty, reduce the penalty or uphold the penalty under subsection (3).

189     Subsection (7) specifies which courts may hear an appeal.

Clause 36: Code of practice on penalties

190     This clause sets out the provisions relating to the code of practice on penalties.

191     The Secretary of State has the duty to issue a code of practice setting out the matters that will be considered when determining the amount of a civil penalty. He must have regard to the code when imposing a penalty or considering a notice of objection. A court must also have regard to the code when determining any appeal.

192     Before issuing the code, a draft must be laid before Parliament. It then comes into force as specified by order.

Fees and charges

Clause 37: Fees in respect of functions carried out under Act

193     This clause makes provision for the payment of fees.

194     Subsection (1) enables fees to be set for:

• applications for entries to be made, for their modification or the issue of ID cards;

• making or modifying entries;

• issue of ID cards;

• applications for provision of information contained on the Register;

• provision of such information;

• applications for confirmation of any information recorded;

• the issue or refusal of such a confirmation;

• applications for the approval of a person or apparatus (the accreditation);

• the grant of such approvals.

195     Subsection (2) allows regulations to be made allowing the payment of fees by instalments, for example schemes such as saving stamps.

196     Subsection (3) allows the Secretary of State in prescribing fees under subsection (1), to take into account the wider costs associated with the identity cards scheme. For instance, a charge may need to cover not just the issue of an ID card but also the costs of updating the card when details such as address change, which may not necessarily incur an additional fee. This subsection also gives a power to charge different fees in different circumstances, to allow for example for a reduced fee for some cards or to cross-subsidise between different cards. Subsection (3)(d) also includes a power to take into account the cost of issuing ID cards in connection with the issue of designated documents. Subsection (3)(e) allows for expenses incurred in the provisions of consular services to be taken into account in setting fees, for example where a card was valid for travel this might be appropriate.

197     Subsection (4) means Treasury consent is required before regulations are made under subsection (1).

198     Subsection (5) allows for the fees for designated documents to cover the costs of dealing with matters under this Bill (i.e. the Register and ID cards) when those matters are dealt with in relation to applications for, and the issuing of, designated documents. For example, charges for residence permits could be made using existing powers, and include the costs associated with the identity cards scheme.

199     Subsection (6) gives the Secretary of State the power to raise fees over a period which he thinks appropriate, which could be any time after the commencement of the power to charge including in advance of the introduction of identity cards.

Clause 38: Amendment of Consular Fees Act

200     Clause 38 amends Section 1(4) of the Consular Fees Act 1980, to allow flexibility in the setting of fees for the carrying out of consular functions which includes the setting of passport fees. The amendment provides a power to set different levels of fees for different cases and to make exceptions for different types of case including an exemption from any fee. This would enable the cross-subsidy of passport fees between fees charged to different applicants. For example, this provision will provide a statutory basis for the issue of free passports which has already been introduced for those born on or before 2 September 1929 to be subsidised by charges made for other passports.

201     Clause 45(5) provides for this clause to come into force two months after this Bill is passed. The fee setting powers in this amended clause could be applied at any period after that time including in advance of the introduction of identity cards.

Provisions relating to passports

Clause 39: Verifying information provided with passport applications etc.

202     This clause deals with the provisions necessary to permit data to be shared for the purposes of verifying information provided in relation to an application for a passport or the withdrawal of a passport. It mirrors the provision in respect of ID cards made in clause 11.

203     Subsection (1) places a duty on a person to provide information to the Secretary of State for the purposes of verifying information related to an application for a passport and/or a decision to withdraw an individual's passport.

204     This obligation is mandatory (subsection (2)). Subsection (2) also enables the information to be required within a specified timescale.

205     Subsection (3) sets out that the requirement may be imposed on a Minister, government department, Northern Ireland department, National Assembly for Wales or any person specified for the purposes in an order made by the Secretary of State.

206 Subsection (4) clarifies that the persons who may be specified in an order includes anyone carrying out statutory functions that are carried out on behalf of the Crown.

207     Subsection (5) provides that there is a duty on the individual to provide the information and this may be enforced via civil court proceedings. In the case of public authorities, normal public law remedies such as judicial review will apply.

208     Subsection (6) enables the Secretary of State to pay those whom he is requiring information to be provided from.

209     The order making provision to require information is subject to the affirmative resolution procedure (subsection (7)).

Clause 40: Amendments of legislation relating to passports

210     Clause 40 makes a series of amendments to existing legislation where currently passports are mentioned to enable identity cards to be used in circumstances where a passport may currently be required.

211     This clause also amends legislation where a person is required to surrender his passport and has an ID card that is valid for travel. The amendment to the Football Spectators Act 1989 by subsections (1) and (2) ensures that a requirement to surrender a passport includes a requirement to surrender an ID card able to be used as a travel document.

212     Subsections (3) and (4) make a similar amendment to the Criminal Justice and Police Act 2001 where courts can issue travel restriction orders in cases of serious drug offenders leaving prison.

213     Subsection (5) allows amendments to be made to existing legislation, so that where currently they include a reference to a passport, a reference to an ID card, or to an ID card of a description not already mentioned in that enactment or provision, may be added. This is subject to the negative resolution procedure as far as subordinate legislation is concerned and the affirmative resolution procedure if primary legislation is amended.

214     This power is necessary to enable the ID card, as a highly reliable form of identity, to be used in the widest range of circumstances and to facilitate its use as a travel document.

Supplemental

Clause 41: Orders and regulations

215     This clause provides how orders and regulations are to be made. This will be through a negative resolution procedure except in cases specifically provided for in the Bill.

216     Subsection (4) enables provisions to differ for different cases, with exemptions and exceptions. For example, regulations may allow different application procedures for groups such as the very elderly or those with mental health problems.

217     Subsection (5) provides that if in the future the age at which an entitlement to registration arises (Section 2(2)) is modified so that individuals under the age of 16 may register, then any obligations under this Act (for example to notify changes under Section 12) can fall on the child's parents or other responsible adult.

218     Subsection (6) is necessary so that where amendments are made to Schedule 1, consequential changes may be made to where references are made in the Act to that part of the Schedule and to clauses 14(2) and 14(3).

219     Subsection (7) sets out in more detail what the power for the approval of a person or of apparatus (the accreditation system) provides. This includes the granting of an approval subject to specific conditions (e.g. that the organisation maintains an agreed level of security) which may be modified as well as the suspension or withdrawal of an approval (e.g. where the organisation has misused the verification service).