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Lord Stoddart of Swindon: I accept that there is no power in the Bill to take DNA samples. If the Government wished to have such a power, would they have to introduce primary legislation?

Baroness Scotland of Asthal: There would have to be new legislation. There is no order-making power in this Bill. We have gone through the framework created by Clause 1(5), which is the primary focus, and we then have the schedules. The opportunity for the Secretary of State to bring in new matters is confined within those parameters. That is why I said earlier that Clause 1 is important, and that we need it for the framework. In response to the noble Baroness, Lady Seccombe, who asked why we had it rather than just having Schedule 1, we need the two because the one defines the ambit of the other.

The Clause 11 power cannot be used, for example, by the police or other sources, as that power can be used only to verify information that the Secretary of State already has. It would not be lawful for the police to provide that information voluntarily because they are constrained by PACE and powers as to the purpose for which they can disclose DNA and fingerprint information. It is not included in the schedule as the Bill stands. It could not be recorded in the register. Even if it were added by affirmative order, there is no power in the Bill to take DNA samples, no power under Clause 11 and no power to give it voluntarily, as it is constrained by PACE.

I hope that I have made it clear. I understand the anxiety but that anxiety should be contained for another day because it is not based on anything in the Bill.

The Earl of Erroll: I think that there may be an illogical inconsistency. It is a clever way of defining external characteristics. Your iris is internal but it can be read externally. That is presumably how an external characteristic is defined. It is not something that is external to the body, but it can be read externally. On the other hand, hair contains DNA. I think that most people would define hair as a characteristic external to the body. You could therefore take a piece of someone's hair, or it could be shed, and that would not be internal to the body. If we are defining the external and internal characteristics by the way in which the sample is taken, then the Bill is possibly flawed. You are either permitting the inclusion of DNA by taking it externally, or excluding the iris because it is an internal characteristic.

5.15 pm

Baroness Scotland of Asthal: The point is that we cannot take samples. We do not take a sample of the iris when it is recorded. If we take a strand from someone's head, that is a sample which cannot lawfully be taken under this Bill. You cannot take
 
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blood; you cannot take any other bodily fluid; you cannot take skin; you cannot take hair. The Secretary of State has no power to take anything that amounts to a physical sample. What you can do is externally record the facial characteristics, the iris and the fingerprints.

The Earl of Erroll: Is that prohibition actually in the Bill? If not, it should be.

Baroness Scotland of Asthal: Clause 43 provides an adequate degree of certainty as to what external characteristics fall within the definition. As I say, I understand the reason for concern, but I hope I have made it absolutely clear that there is no basis for that concern within this Bill.

Baroness Anelay of St Johns: I thank all noble Lords who have taken part in this debate. Of course, it has shown that the Minister, I and other noble Lords are as one in trying to ensure that, as this Bill is drafted, DNA should not form part of the information that may be put onto the national identity register unless there is further primary legislation.

I am particularly grateful to the Minister for directing her answer specifically to my questions about the technological feasibility of DNA samples being recovered from the fingerprinting process which will take place within the context of the work at the enrolment centres. In the light of that, it may be convenient if I indicate to the Minister that I shall not be returning to this issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seccombe moved Amendment No. 44:

Page 2, line 28, at end insert ", the inclusion of which in an individual's entry is authorised by Schedule 1"

The noble Baroness said: We have been dealing with the specific question of DNA, but are still left with the issue that the Bill is deliberately framed to give the widest possible powers to the Government in compiling, maintaining and identifying information that is usable on the register.

Clause 1(7)(e) is very broad indeed, referring to any physical characteristic capable of identifying a person—their race, perhaps. There is no direct reference to the limiting provisions of Schedule 1, and there should be. Without any limiting reference, it could include a person's height or weight, the fact that they had a tattoo on their right ankle, or the fact that they walked with a limp or were disabled. None of that would be ruled out by Clause 1(7)(e).

Is there not a chance that the police and security services, who we are told are the keenest proponents of this legislation, might find such information useful? "Ah, well," the Minister may say, "Clause 3(a) says that only information in the schedule may be included". That is not so tight, however, as a reference to Schedule 1 would be here. After all, Clause 3 also contains a provision allowing any information to be recorded that an individual wants, and which the
 
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Secretary of State considers practical and appropriate. Could I record, if I wanted to, that I am white, small—or, as someone else suggested, "of medium height"—or disabled?

What is more, the clause also allows the Secretary of State to modify Schedule 1—a subject to which we will return on later amendments. Schedule 1 as presently drafted offers more limitation. It seems to rule out the compilation of a race register, although I would like reassurance on that. In many government documents, are we not asked to provide details of our racial characteristics? Paragraph 7(c) of the schedule allows the inclusion of any information in connection with an application to be included in the register. Would that include an application for a driving licence which is a designated document in which someone might record a disability? Could that be used to build up a disability register, for example?

Sub-paragraph (e) is framed much too broadly. A reference to the schedule would help, but even that, as I have indicated, may be open to abuse. Will racial characteristics or disability ever be entered on the register? Will a person's height or weight ever be registered? If not, where in the Bill is the power to prevent a future government building up a race register, given the clauses in the Bill to which I have referred? I hope that the Minister can accept this tightening of the Bill and I look forward to her reassurance in reply. I beg to move.

Lord Phillips of Sudbury: I am grateful to the noble Baroness, Lady Seccombe, for tabling the amendment, as I believe it, or something like it, is much needed. The way the matter is drafted puts primacy on Schedule 1 rather than on Clause 1, which is the wrong way round. It seems to me that an example of what Clause 1(7)(e) would at present allow would be dental records. Someone's teeth, and all to do therewith, are physical characteristics. As the Bill stands, Clause 3(5) allows the Secretary of State by order to modify the information required by Schedule 1, so it would be open to him to say, "Now we want complete dental records of everyone with an identity card and everyone applying for an identity card". The fact that that is not at present in Schedule 1 is beside the point as Clause 3(5) allows extensions of information so as long as they are within Schedule 1. This is an important amendment and I would be grateful if the Minister could tell us whether we are right or wrong.

Baroness Scotland of Asthal: In relation to being right or wrong the answer is yes and no. The noble Lord is absolutely right to say that there is an order-making power, but that power is by affirmative resolution of both Houses. It would be possible, if my right honourable friend the Home Secretary, or any of his successors in title, were minded to come forward with an order for any category, to put that order before both Houses and for both Houses to determine what they think about such an extension. I can easily imagine the reaction if any of my right honourable friend's successors in title came forward with an
 
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indication on, for example, race, and I can anticipate what this House, if not the other place, would be likely to do with that.

The definition of information contained in Schedule 1 could be amended by affirmative resolution before any additional detail within the wider definition of physical characteristics could possibly be included. It must also remain within the statutory purposes of the scheme. This power was recognised by the Delegated Powers and Regulatory Reform Committee, which considered the powers sufficiently defined in extent and, as such, we and the committee do not consider that any further restriction is necessary.

The noble Baroness, Lady Seccombe, asked whether one could voluntarily record whether she was white, small and so on. That is dealt with in Amendments Nos. 67A and 68 which will be discussed later. But I can assure her that irrelevant information about such matters as height and race could not be recorded. Any amendment to add such physical characteristics to the schedule would be subject to the affirmative resolution procedure. Voluntary information can be recorded only once the categories of such voluntary information have been set out by order. Voluntary information can only be in categories in the order subject to the negative procedure.

I have already dealt with racial characteristics under the register because I have indicated that they will not be included. Racial and ethnic origins are not registrable facts as defined in Clause 1(5). The Government have no intention of changing that. Just to remind the House of what we all know, physical characteristics are not the same as racial or ethnic origins. One only has to think of Aryans, who come in different shapes, sizes and colours.

I hope that that has reassured the noble Baroness that these amendments are unnecessary. I understand why the noble Baroness wanted clarification, but I hope that she, and the noble Lord, can rest easy.

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