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Session 2005 - 06
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Standing Committee Debates
Identity Cards Bill

Identity Cards Bill




 
Column Number: 421
 

Standing Committee D

The Committee consisted of the following Members:

Chairmen: †

Mr. Roger Gale, Mr. Jimmy Hood

†Baird, Vera (Redcar) (Lab)
†Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
†Borrow, Mr. David S. (South Ribble) (Lab)
†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Drew, Mr. David (Stroud) (Lab/Co-op)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Farron, Tim (Westmorland and Lonsdale) (LD)
†Garnier, Mr. Edward (Harborough) (Con)
†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)
†Mercer, Patrick (Newark) (Con)
†Mountford, Kali (Colne Valley) (Lab)
†Palmer, Dr. Nick (Broxtowe) (Lab)
†Prisk, Mr. Mark (Hertford and Stortford) (Con)
†Robertson, John (Glasgow, North-West) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Wallace, Mr. Ben (Lancaster and Wyre) (Con)
John Benger, Emily Commander, Committee Clerks
† attended the Committee


 
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Thursday 21 July 2005

[Mr. Roger Gale in the Chair]

Identity Cards Bill

9.15 am

The Chairman: Good morning, ladies and gentlemen. Before we commence, I should say that it has been drawn to my attention that, for reasons I cannot even begin to contemplate, the Committee wants to complete its proceedings in this sitting. That being so, I shall make a ruling so that everyone knows where they stand.

I believe that all Members have an absolute right to attend Speaker’s prayers if they so wish, and most certainly to be present at Question Time. I do not, therefore, propose to invoke the 15-minute rule, which is in my gift, so either this morning’s proceedings will be completed by 10.25 am or the Committee will sit again at 1 pm.

Clause 31

Tampering with the Register etc.

Dr. Nick Palmer (Broxtowe) (Lab): I beg to move amendment No. 196, in clause 31, page 26, line 41, after “unauthorised”, insert “access to or”.

The Chairman: With this it will be convenient to discuss the following amendments: No. 197, in clause 31, page 27, line 1, after “cause”, insert “access to or”.

No. 198, in clause 31, page 27, line 3, after “such”, insert “an access to or”.

No. 199, in clause 31, page 27, line 5, after “causes”, insert “an access to or”.

No. 200, in clause 31, page 27, line 7, after “to”, insert “an access or”.

No. 201, in clause 31, page 27, line 17, after “section”, insert “an access or”.

No. 202, in clause 31, page 27, line 19, after “the”, insert “access or”.

No. 203, in clause 31, page 27, line 21, after “the”, insert “access or”.

No. 204, in clause 31, page 27, line 24, after “causing”, insert “an access to or”.

No. 205, in clause 31, page 27, line 29, after “the”, insert “access or”.

Dr. Palmer: I had intended to speak for several hours, but cross-party representations have persuaded me otherwise.

The Chairman: Order. So far as I am concerned, the hon. Gentleman may speak for as long as he likes, as long as he is in order.

Dr. Palmer: I am grateful, Mr. Gale, but I fear that you alone in this Room hold that view.


 
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The purpose of the amendments, which are probing, is to ask the Government what they will do to discourage hacking into the database. Hacking worries my constituents more than tampering. It is reasonably unlikely that someone will try to get into a database and, say, enter a different address, but my constituents are concerned about unauthorised access. All of us who have worked in IT will know about the more familiar type of electronic intrusion.

The amendments are, in essence, identical and they were tabled merely for the sake of completeness. It is sufficient to discuss amendment No. 196, which would, by way of modification—the favourite word of the hon. and learned Member for Harborough (Mr. Garnier)—add the words “access to or”. This seems to be the more serious issue, and I would be grateful if the Minister addressed it.

The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): As my hon. Friend has clearly outlined, his amendments have the single purpose of adding unauthorised access to the register to the modification offence created under clause 31.

I am grateful to my hon. Friend for tabling the amendments, which endeavour to ensure that those who seek to threaten the security of the register may be prosecuted, but I hope to reassure him that they are unnecessary and that the clause already provides that protection.

The clause contains the specific and serious offence, which is punishable by 10 years’ imprisonment, of unauthorised tampering with the information on the register. Someone who gains unauthorised access to information on the register remotely but who does not cause a modification or does not have the intention required by subsection (2) will nevertheless be covered by the Computer Misuse Act 1990 and will be dealt with appropriately.

Section 1 of the 1990 Act contains the offence of unauthorised access to computer material, with a maximum penalty of six months. Section 2 contains the offence of unauthorised access with the intent to commit or facilitate further offences, with a maximum penalty of five years. My hon. Friend’s substantial and fair point about access as well as modification is therefore covered by that Act.

I also reassure my hon. Friend that the fact that someone has accessed information will automatically be recorded in the technical data on the register, so there will be an audit trail of any unauthorised as well as authorised access. In that context, I ask him to withdraw his amendment, however well put and eloquently made.

Dr. Palmer: I am overcome by the Minister’s kind words and flattered into doing as he suggests. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer (Newark) (Con): I beg to move amendment No. 107, in clause 31, page 27, line 12, leave out subsection (4).


 
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Amendment No. 107 complements the amendments we have just discussed, as it would remove subsection (4) of clause 31. We tabled it to probe the Government on how hackers or crackers will be dealt with if interference with the identity register comes from abroad. I would be most grateful if the Minister enlightened us on such matters.

Mr. McNulty: I thank the hon. Gentleman for explaining the amendment. As he said, it would remove subsection (4), which provides for extra-territorial effect in relation to the offence of tampering with the register. Furthermore, when authorised modifications took place abroad, it would be immaterial under the amendment whether the conduct was that of a British citizen. To protect the register from unauthorised modification, we must ensure that any offences applied also apply to unauthorised modifications effected from abroad, no matter what the nationality of the computer hacker, cracker or whatever else people want to call him or her.

The register will be located in the United Kingdom. A computer located outside the United Kingdom could effect an unauthorised modification from there, but an offence would be committed in the United Kingdom under clause 31. It could be argued that United Kingdom courts would therefore have jurisdiction over any such extra-territorial offence, regardless of an express statutory reference. As the register concerns people resident in the UK, Parliament could also be understood to intend that the United Kingdom courts should have jurisdiction over all unauthorised modifications of the register.

However, I took the view that the matter should be put beyond doubt under the Bill, as the general principle of the common law of England is that the exercise of criminal jurisdiction does not extend to cover acts committed on land abroad. Furthermore, when a statute expressly provides for extra-territorial jurisdiction, it will, in the absence of further clear provision, be regarded as covering such acts only when they are committed by British subjects. Therefore, express provision has been made under subsection (4) for the offence to apply regardless of nationality.

For completeness in this IT age, when extra-terrestrials will perhaps be the next problem rather than extra-territorials, we need subsection (4). The offence will be extraditable; someone could be prosecuted if here or extradited from abroad for trial. The matter is very serious and it goes to the heart of the security of the register. On balance, I believe that clause 31 is better with subsection (4). I trust that the hon. Gentleman recognises the need to provide for extra-territorial jurisdiction in relation to the offence and I ask him to withdraw the amendment.

Patrick Mercer: The Minister has hacked my amendment off at the knees.

Mr. McNulty: Politely.


 
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Patrick Mercer: Indeed, and I am most grateful to the Minister. His comments on extradition have reassured me, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

The Chairman: It will also be convenient to discuss new clause 1—Prohibited uses of information—

    ‘(1)   Subject to subsection (2), a person shall be guilty of an offence if he uses or stores any of the information set out in Schedule 1, paragraphs 4 to 9 in such a manner as to form an index to any file or data retrieval system unless—

      (a)   the person using or storing such information is the originator of the information; or

      (b)   such use or storage is undertaken as part of the operation and maintenance of the Register.

    (2)   The Secretary of State shall not provide any person with information from the Register if he believes that it may be used for a purpose prohibited under subsection (1).

    (3)   A person guilty of an offence under this section shall be liable—

      (a)   on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

      (b)   on summary conviction in England and Wales, to imprisonment for a term not exceeding twelve months or to a fine not exceeding the statutory maximum, or to both;

      (c)   on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.’.

Mr. Garnier: While speaking briefly to the new clause, I shall refer to clause 31 as a whole. The new clause is to be found on page 305 of the modification paper and it relates somewhat to the matters we discussed a moment ago, inviting us to create an offence if a person

    “uses or stores any of the information set out in Schedule 1, paragraphs 4 to 9”—

members of the Committee can see for themselves what information those contain—

    “in such a manner as to form an index to any file or data retrieval system unless”

the person using it is the originator of the information or is doing that work

    “as part of the operation and maintenance of the Register.”

Proposed new subsection (3) sets out the penalty.

There is a lacuna that needs to be filled if the Bill is to have any integrity according to its own principles. I put it in parenthesis that I disapprove of the Bill as a matter of principle, but if we are to have it, it might as well include new clause 1.

Mr. McNulty: As we know, clause 31 provides for an offence of tampering with the register. A person is guilty of the offence if he intentionally or recklessly makes an unauthorised modification of an entry. New clause 1 would prevent the reference numbers or histories contained in paragraphs 4 to 9 of schedule 1 from being used as index numbers on third-party databases unless those third parties were the originators of the information. A new offence would be created for those who breached the terms of the clause.


 
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On balance, we will resist the new clause. It does not attempt to prevent the information from being held on the register—new clause 1(1)(b) ensures that—but it would restrict how third parties could use and store the information. It refers to “person”, so it covers public authorities and private organisations. The effect would be to prevent the immigration and nationality directorate, for example, from holding an individual’s foreign passport number as a reference number because it would not be the originator of that number. It would also prevent legitimate employers from being able to sort their employee databases using their national insurance numbers.

If the hon. and learned Member for Harborough had been minded to do so and if he had more time, he might have explained that the new clause is meant to probe the circumstances when a third party could hold an individual’s national identity registration number on file and the consequences of that. A third party would have the NIR number only with consent, as covered in clause 14, or in accordance with the specific circumstances that we discussed around clauses 19, 20 and 22. The number would be of no use to the third party as it would have neither the ID card nor the biometrics with which it would match.

On the provision of information, the Bill sets out clearly who, what, why and how. Beyond that, it is not appropriate or practical for the Bill to be used to restrict the manner in which information may be held by third parties or to limit how it may be used by them. In practice, those concerns relate to the fair processing of information and thus fall under the remit of the Data Protection Act 1998 and the jurisdiction of the Information Commissioner.

I understand why the hon. and learned Gentleman tabled new clause 1, but I ask hon. Members to resist it. I commend clause 31 to the Committee.

Mr. Garnier: I may be able to help the Minister. I will not press new clause 1, either now or at a later stage, but will he tell me why clause 31(4), which my hon. Friend the Member for Newark (Patrick Mercer) reasonably tabled an amendment to delete, cannot simply state that an offence under the provision may be committed by a British citizen anywhere in the world and by anyone within the United Kingdom? That says the same thing in fewer words.

Mr. McNulty: Far be it from me to challenge the legalese that forms our deliberations, as I am not a member of legal fraternity. I suspect that the subsection says entirely what the hon. and learned Gentleman suggests, but in the frilly and flowery language that is our legalese. That is a shame, as I would prefer plain English, but there we have it. It says what he says, but in lawyers’ terms.

Mr. Garnier: If that was a bouquet, I would hate to see a hand grenade. Whatever I have to do to withdraw new clause 1, I shall do it.


 
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The Chairman: The answer is that the hon. and learned Gentleman has to do nothing, as it has not been moved.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.

9.30 am

Clause 33

Imposition of civil penalties

Mr. Garnier: I beg to move amendment No. 109, in clause 33, page 28, line 40, after “defaulter”, insert “in writing”.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 110, in clause 33, page 29, line 6, at end insert

    ‘including methods by which payment may be made by instalments’.

No. 111, in clause 33, page 29, line 10, at end insert—

      ‘(g)   set out the grounds of objection to such a penalty contained in section 34.’.

No. 112, in clause 33, page 29, line 11, leave out “14” and insert “28”.

No. 113, in clause 33, page 29, line 18, after “question”, insert

    ‘save a question of proper service of the notice’.

Mr. Garnier: On page 28 of the Bill, we wish to insert “in writing” in clause 33(2), so it would read:

    “The Secretary of State may, by a notice given to the defaulter”—

“in writing”—

    “in the prescribed manner”.

It may be thought that “notice” suggests an element of permanence, but it is perfectly possible to give people notice orally. I have no doubt that in practical terms the Secretary of State will not be wandering around telling people that he will be inviting his officials to send out pieces of paper, but it will be as well to have that assurance from the Minister.

Amendments Nos. 110 to 113 deal with what I hope are perfectly sensible suggestions. In relation to amendment No. 110, it should be possible to make penalty payments in instalments. Consider the earlier clauses that we dealt with: some civil penalties are, or could be, in the thousands of pounds, so an instalment method may be just and appropriate.

Similarly, the next amendment would require the setting out of the grounds for objection in clause 34 be specified. With amendment No. 112, we want to adjust the period for payment to 28 days as opposed to 14. That seems to be entirely just, and it would not destroy the Government.

With amendment No. 113, we say that the grounds for moving the procedure to deal with an objection are unfairly restricted to those in clause 33(6)(a) to (c). They should include also questions about the quality of the serving of the notice itself. I know that the Royal Mail is impeccable in every aspect of its functions, but
 
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from time to time the post does not arrive, and it is no good turning up at court or at the tribunal complaining that the notice never arrived, if that argument is not available. I hope that it can be made such.

The amendments are fairly straightforward, and they can be dealt with in a common-sense way. I imagine that the Government wish to embrace them.

Mr. McNulty: The hon. and learned Gentleman clearly has a very strong imagination. We think that amendment No. 109 is unnecessary—he alluded to this himself—because although the provision, taken literally, could mean the Secretary of State going around and orally presenting to everyone the cost and circumstances of the civil penalty, he does not really want to do that, so it is not going to happen.

We shall not need the requirement to give notice in writing. Subsection (3) sets out the information that a notice must contain. Regulations made under subsection (2)—I am sorry to offend the hon. and learned Gentleman by talking about regulations—will be aimed at ensuring that the manner in which a notice is given is clear and fair and that it leaves the recipient in no doubt that a penalty has been imposed.

We think that leaving the provision to regulation will give us a good deal of the necessary flexibility to achieve that aim. For example, notices might be given by e-mail—for the benefit of the hon. and learned Gentleman, that is a new-fangled contraption that works over the airwaves—as well as through the post. Subsequent innovations may mean that leaving the provision with that flexibility is preferable to being very specific and talking about writing.

Amendment No. 110 would spell it out that a penalty may be paid in instalments. We shall certainly consider that when we design the detailed arrangements; it is an entirely fair point that reflects how things are going. Crucially, though, subsection (3)(d) does not preclude us from so doing, and I do not consider it necessary to refer expressly in the clause to instalments.

Through amendment No. 112, the hon. and learned Gentleman would increase the period within which a person may be required to pay a penalty from 14 days to 28. Subsection (4) simply provides for a minimum period of not less than 14 days, but the period will not be settled until the details of the scheme are finalised. We think that 14 days is the right time to have as a statutory minimum, and I assure the hon. and learned Gentleman that when the time comes to decide the period set for penalty notices, careful thought will be given to those who may be subject to civil penalties and whether a payment period of more than 14 days is desirable in practice.

I apologise for not dealing with every single amendment, but, although I appreciate the drift, I must ask the hon. and learned Gentleman to withdraw his amendment, given the calm and reassuring words I have just imparted.

Mr. Garnier: May I assure you, Mr. Gale, and the Minister that none of my amendments “drift”? They are, in every sense, intellectually coherent.
 
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Unfortunately, on this occasion, that has not got across to the Minister, who has asked me to withdraw the amendment. Because I am sitting opposite him, I shall agree. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.

Clause 34 ordered to stand part of the Bill.

Clause 35

Appeals against penalties

Patrick Mercer: I beg to move amendment No. 115, in clause 35, page 30, line 23, leave out “or”.

The Chairman: With this it will be convenient to discuss amendment No. 116, in clause 35, page 30, line 24, at end insert

    ‘or

      (d)   increase the penalty.’.

Patrick Mercer: The amendment is a very simple one, which would merely delete the word “or”. Amendment No. 116 would add a new paragraph (d). We are probing the Government on this matter because, in relation to the question of appeal, the court can cancel or reduce the penalty, or dismiss the appeal. We propose that the court should be allowed to increase the penalty. A disincentive to appeal would be created that the court might find useful.

Any number of appeals could go on in relation to several elements of this Bill, and others. If we give the court the ability to increase the penalty, there might be less incentive to appeal. I believe that would be useful, so I would like to know why the Government have not included such a provision. I look forward to hearing the Minister’s explanation.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I shall be brief. Perhaps the Minister will respond to this point. It does not strictly relate to the amendment, but it would assist me if he clarified the Government’s thinking on the procedure to be followed in bringing such matters before a court in Scotland. There is a procedure known as summary application, for which legal representation is not normally required, and it seems to me eminently sensible that the Government should use that much under-used procedure. I hope the Minister will confirm that that is their intention.

The Chairman: As the hon. Gentleman knows, I am perfectly happy to allow stand part debate at the beginning of our consideration of a clause, rather than at the end, and I am sure that that will accommodate the Minister’s response.

Mr. McNulty: Thank you, Mr. Gale.

As the hon. Member for Newark suggests, this clause is about whether to

      “(a) allow the appeal and cancel the penalty;

      (b) allow the appeal and reduce the penalty; or

      (c) dismiss the appeal.”


 
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He seeks to add a further power to increase the penalty. On balance, we do not think that the amendment is desirable. It certainly would not follow the pattern of similar civil penalty schemes, such as the carriers’ liability scheme in the Immigration and Asylum Act 1999, under which the court is not empowered to increase penalties.

The opportunity to appeal to the court is provided as a means of ensuring that, even though civil penalties are unilaterally imposed by the Secretary of State, the article 6 right—that is, the right to a fair trial for those on whom penalties are imposed—is respected. The purpose of the appeal is not for the court to mete out further punishment to the appellant, but to ensure that those rights under article 6 are respected. The Secretary of State decides what the appropriate penalty is and, at the objection stage, whether to increase it.

On balance, there is no reason for the courts to have the power to raise the penalty—as I say, in other civil penalty schemes there is certainly no such power—but I take the point about trying to achieve a balance between allowing the right to appeal, thus satisfying the requirements of article 6, and trying to build in a deterrence factor so that people do not appeal capriciously.

To answer the hon. Member for Orkney and Shetland (Mr. Carmichael), subsection (7) says that in Scotland the matter is down to the sheriff. I have no idea whether that answers his question, but that is my answer, as I do not know where responsibility for summary applications lies in the Scottish legal system.

Given what I said on the lead amendment, I ask the hon. Member for Newark to withdraw his amendment, but I am happy to give way to the hon. Member for Orkney and Shetland first.

 
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