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Lord Stoddart of Swindon: I do not think that the Government would want to go along with this proposal. We all know—we have debated it in this House many times—that pushing through items by negative order antagonises people. In my view, in matters of this kind, it is absolutely dangerous. As has been pointed out, the order has to be prayed against. If it is given any time at all, there is a discussion, there can be no votes and there can be no amendments.
The affirmative order is slightly different. The Government have to ensure in their time that there is discussion, and although there can be no amendments, the affirmative order can be rejected. That is the nuclear option. Nevertheless, there can be a full-scale discussion, and if the Government have not persuaded Parliament that the items are right and proper and can be accommodated by Parliament, they can throw them out. With the negative instrument, it would be very difficult for them to do that.
As I said at the beginning, in a matter as sensitive as this, I would have thought that the Government would accede to the amendment on the basis that they want to take Parliament with them. Although the Prime Minister thinks that Labour will be in power for the next 100 years, that is by no means certain. Nevertheless, they may be in power for a long time and they should want to take Parliament with them. One of the ways in which they can do that is by acceding to amendments of this kind, which would give Parliament a greater say.
Baroness Scotland of Asthal: I can assure the noble Lord, Lord Stoddart, that we want to take Parliament with us. Indeed, we do not think that this provision should necessarily be a contentious one. Perhaps I can explain why I say that.
Taken together, Amendments Nos. 50 and 65 would make any subordinate legislation under Clause 2(3) subject to the affirmative resolution procedure, which would require a draft order to be laid before and approved by Parliament before the order was made. I hope I have indicated that the Government's view is that in a number of areas the affirmative procedure is correct. In particular, we did that in relation to the previous amendment that we debated. However, we are not convinced that the affirmative procedure is required for this power, which is just to exclude categories of persons from an entitlement to register.
The power is limited to the categories described in subsection (3); namely, those who have resided in the UK for less than the prescribed period. I have already indicated that we propose that the period to be prescribed should be about three months. Anyone who has been here for fewer than three months, and those who reside here unlawfully, would not be entitled to register. In relation to those two groups of people, we
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believe that it is appropriate for any change in relation to paragraphs (a), (b) or (c) to subsection (3) to be by negative resolution. It cannot be used for other cases.
The delegated powers in this clause were scrutinised by the Delegated Powers and Regulatory Reform Committee in its report on 10 November. It made no comment about the level of scrutiny in this clause. We therefore have to accept that it was content with it. We have listened to the concerns previously expressed and have changed the order-making power in relation to modifying the age of registration to an affirmative resolution process, which reflects the fact that this would not be done lightly and would not cause significant public debate. I am not convinced that the other regulation-making powers under this clause relating to entitlement to registration require the affirmative procedure. Therefore, we are of the view that the negative procedure is appropriate.
Lord Phillips of Sudbury: I am grateful for the Minister's explanation of the Government's position. She did not mention Clause 2(2), which deals with the Secretary of State's power in relation to individuals of a prescribed description who have resided in the United Kingdom. In my view, that is quite a wide and important power. I take the Minister's point about people who are here illegally. However, when she refers to just excluding categories from registration in subsection (3), I believe that there is more than "just" to it.
I do not want to prolong the debate, but I have to say that the negative procedure has almost fallen into disrepute. I do not know when a negative resolution was ever not proceeded with. I do not think that there is an example of it in post-war history. It is literally a passport for a government to do what they like. That is why I am not happy, but I hear what the Minister has said.
Baroness Scotland of Asthal: In view of what I have just heard from the noble Lord, I should make it absolutely clear that the affirmative resolution procedure would apply to Clause 2. As I understand it, the noble Lord's amendments would apply not to subsection (2) but only to subsection (3).
Lord Phillips of Sudbury: My Amendment No. 65 would require all orders made by the Secretary of State under this section to be by affirmative order. Reading through to Clause 43, I do not see where it is stated that prescription under Clause 2(2)(b) has to be by affirmative order. I took that to be a power exercisable by negative procedure, but perhaps it is a matter to be resolved beyond this place.
Baroness Scotland of Asthal: I want to make it plain that I am saying that Clause 2(3) relates to negative resolution. However, if there is any remaining lack of clarity, I shall be very happy to write to the noble Lord about it.
Lord Phillips of Sudbury: I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
The Earl of Northesk moved Amendment No. 53:
The noble Earl said: In moving Amendment No. 53, I wish to speak also to Amendment No. 144. As I read it, Clause 2(4) means that in the so-called "voluntary" phase of the scheme an individual could find his registrable facts being entered on to the register without his consent and against his will. This prompts me to ask the question, why? Perhaps I am being unnecessarily obtuse but I struggle to understand what purpose is served if an individual's details are to be entered whether or not he has applied to be, or is entitled to be, entered on the register. At the very least one would expect an individual to have a right to know when information about him is being, as it were, manipulated, in this way—the more so because of the gravity of the civil penalties on the face of the Bill. Indeed, if the individual is unaware that his data is being, or has been, entered, what chance does he have of complying with the various requirements to update his information? I should be grateful, therefore, if the Minister could give us specific examples of the circumstances in which it is envisaged that such entries to the register will be made.
Having thought about it, it occurred to me that one possible reason for the provision might be to facilitate the merging of data on to the register from already existing government databases. In so far as that may be correct, I am bound to state my firm opposition to such a prospect. Contrary to the protestations of the Government to date it suggests that it is envisaged, if not anticipated, that considerable "linkage" will exist between the national identity register and the host of other databases throughout government. Evidently this would be wholly antipathetic to individual privacy rights. Quite apart from that it also undermines the Government's insistence that a principal reason for the register is to establish a wholly clean information database from scratch and therefore untainted by any of the inaccuracies or anomalies that are prevalent in existing systems.
As to Amendment No. 144, as I read it Clause 8(5) enables ID cards to be issued in prescribed cases to individuals who do not qualify for them. Again, I may be being unnecessarily obtuse but I fail to understand the necessity of foisting a card upon someone even though he is not required to be issued with one. Viewed logically, no individual is likely to want to sign up to the onus of regularly updating their details and the rigours of the civil penalty regime unless the obligation so to do is compulsory. So here, too, I would welcome specific examples of the circumstances in which it is envisaged that that will happen. I beg to move.
Lord Phillips of Sudbury: My name is added to Amendment No. 53. The noble Earl, Lord Northesk, made all the points that I would have made. However, I focus on the point that it seems bizarre that the Secretary of State can force on to the register an entry
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on the part of someone who has the right to apply to be on it, but has not applied, and is entitled to be on the register but has not applied. That seems perverse. As the noble Earl said, we await clarification.
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