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(2A) Those persons are—
(a) a Minister of the Crown;
(b) a government department;
(c) a Northern Ireland department;
(d) the National Assembly for Wales;
(e) any other person who carries out functions conferred by or under any enactment that fall to be carried out on behalf of the Crown."
The noble Baroness said: My Lords, this is a relatively straightforward amendment to respond to a concern raised in the report by the Delegated Powers and Regulatory Reform Committee. The amendment revises Clause 4 so as to respond to the Delegated Powers and Regulatory Reform Committee's report, which drew attention to the fact that the drafting of the clause would, in theory, mean that any document issued under an enactment—whoever issued it—would in theory be covered and could, again in theory as there is no intention whatever of doing so, be designated as an ID card under Clause 4.
The Committee pointed out at paragraph 13 of its report that this would include:
"Documents as varied as home information packs or solicitors' practising certificates: any document issued under statutory powers."
That is clearly not the Government's intention. As has been stated many times, our policy is that the only documents that should be capable of being designated are ones issued in accordance with a statutory requirement by a government department or public authority on behalf of the Crown and not documents that are simply issued under statutory powers. We accept the committee's view that the Bill as drafted could technically be construed as wider than the Government's stated intentions and should therefore be amended. The revised form of words in the amendment uses the same formulation as in Clause 11(5), although of course for a quite different purpose. It provides a means of ensuring that the only documents that could be designated would be those issued by a Minister of the Crown, a government department or a devolved Administration.
I hope that the wording, revised as I have just indicated, fully meets the legitimate concern raised by the committee. I again express the Government's thanks to the committee for the advice that it has provided in the report. I beg to move.
Baroness Anelay of St Johns: My Lords, I rise briefly to formally welcome the amendment moved by the Minister. It is not necessary for the House to look at it in more detail because we were given that opportunity when I pressed the Government on these matters in Committee and she was kind enough to give a full response at that stage. I support the amendments.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendment No. 36:
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Page 4, line 37, leave out from second "provision" to "unless" in line 38 and insert "that he is authorised to make by this section"
On Question, amendment agreed to.
[Amendment No. 37A had been withdrawn from the Marshalled List.]
Clause 5 [Applications relating to entries in Register]:
Lord Phillips of Sudbury moved Amendment No. 38:
Page 5, line 4, leave out "must" and insert "may, if the individual so chooses,"
The noble Lord said: This is very much a joint amendment between the opposition parties, as is Amendment No. 46 to delete Clause 6. We seek to replace compulsion by voluntarism. Citizens should not be forced to have ID cards. Compulsion is far too often resorted to by the modern state. That comes from an intensely managerial culture in which regulation rules. That sits uneasily with fundamental rights such as privacy and voluntarism. This Bill is an authentic clash between such rights and managerial efficiency.
Clause 4 allows the Government to designate any official document so that obtaining or renewing one forces the applicant to apply for an ID card under Clause 5. The amendment gives the citizen a choice. Precisely the same amendment was moved on Report in the other place by the Labour Member for Walthamstow, Mr Gerrard, and it received cross-party support. The vote was lost by 32 votes.
The Government have made it clear that they will, when ready, designate passports under Clause 4, which will eventually compel around 85 per cent of the adult population to have ID cards. The issue of compulsion runs deep. When Michael Howard proposed compulsory cards as Home Secretary in 1995, as I reminded the House last Monday, that was roundly condemned by Tony Blair. As Home Secretary, David Blunkett reverted to the Tory plan, although he called the cards "entitlement cards"—he rather hid the fact that the entitlement was for the state rather than the citizen.
Who is to say how any of us might react if we were Home Secretary in a time of suicide bombers? Apparent security gains then tend to dominate thinking. These are just the circumstances where the job of opposition is to counterbalance that natural bias, to probe the proposed measures and to ensure that they are not likely to be counterproductive.
As the House demonstrated last Monday, it already senses that the potential benefits of compulsory cards are exaggerated; that the financial and privacy costs are being underestimated; and that the whole relationship between the state and the citizen is at stake. We have, I fear, gradually become not just a nanny state, but a snooping state—a surveillance state.
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Both Houses have long been preoccupied by the declining health of our democracy, which is partly related to that. We have lost much of that essential,
as John Pym MP vividly put it 360 years ago—an allegiance which, if active and engaged, will do more to combat crime, withstand terrorism and grapple with the other problems purportedly ameliorated by the ID cards than they can ever do without that allegiance.
Ministers repeatedly claim that the Government have a mandate for compulsion which it would be improper for us to frustrate. On page 52 of its 111 pages, under the heading "Strong and Secure Borders", the Labour 2005 manifesto said:
"We will introduce ID cards, including biometric data like fingerprints, backed up by a national register and rolling out initially on a voluntary basis as people renew their passports".
I repeat: "voluntary". So how can it possibly be argued that that is a mandate for a compulsory scheme? If as they now claim the intention all along was for the scheme to be compulsory, they only had to change one crucial word or add one clarifying phrase. The amendment is therefore consistent with the manifesto "voluntary" commitment, leaving this or any other government free to bring forward primary legislation if they want to compel later on. We believe that compulsion warrants nothing short of that.
Ministers repeatedly say that we are only following Europe and that we are going to have to have EU biometric passports anyhow. The biometric passport, however, will have far less biometric information on it than that proposed for our ID cards, and none of the personal data in Schedule 1, the so-called audit trail data which will record when, where and for what purpose our ID card is used—not forgetting the huge commercial use to be made of the cards. As for the suggestion that we are just catching up with Europe, of the 23 countries for which the LSE identity project obtained comparative data, only 10 had compulsory cards; 10 had voluntary ones and three had none at all. What is more, most of the countries with compulsory cards had local databases. That is reflected in the fact that in the 10 countries with compulsory cards, citizens are charged an average of under £4 per card.
I briefly revert to the standing of the LSE reports, since Mr Blair had another go at them last week, remarking that he did not think that they represented "an entirely objective assessment". Sir Howard Davies, director of the LSE, has felt it necessary to comprehensively scotch that slur in a letter to the Prime Minister last Friday. Nothing so convinces me of the inadequacy of government claims for compulsory cards as their persistent attempts to rubbish the scrupulous, detailed LSE work, while failing to produce a proper critique or adequate figures of their own.
As I say, we are wholly unconvinced that a compulsory scheme would succeed in its own terms, even by its own principal yardstick, referred to five times by Mr Blair at Question Time last week; namely, protection against identity fraud or theft. The paper on this subject, produced by the Cabinet Office
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in 2002, has been severely undermined since by industry spokesmen, NGOs and the LSE report. Claims vis-à-vis money laundering, insurance fraud, card theft and so on are insecurely founded at best, but above all a voluntary scheme would allow citizens who believe in the efficacy of ID cards against identity frauds to have one. There is nothing to stop that under our scheme. Indeed, it would take account of some of the points made rather plangently by opposition Members about certain minority groups who want a card. That would be fine.
Compulsion, in our view, is excessive, and excessive, ill judged laws beget an equal and opposite response. Would-be terrorists feed off the extremism of those they view as their opponents. They will always outbid a democratic state in ruthlessness.
A phrase that has been ringing in my ears as I have struggled to find a satisfactory way to explain my deep misgivings about all this is the one used by my wise lawyer father, now dead. He used to say, "You can't do that", in a certain tone of voice. That meant that if you go beyond a certain point you undermine the very institutions, principles and values that the law is there to protect and which have been our beacons. I can see him, or hear him, now, saying that about cutting back juries; about the latest idea that you can convict people of theft without going to court; about outlawing peaceful protest within a kilometre of this place without a permit; about criminalising robust, even offensive, free speech, on the ground that it might be taken as celebrating violence; about detaining people for months without charge or trial; about police arresting citizens for any conduct, vis-à-vis the mild protestor at the Labour Party conference.
What about the Regulation of Investigatory Powers Act, with that plethora of compulsive state powers? What about camera surveillance via literally millions of CCTV cameras—one for every 14 people in this country, by far the greatest number in the world—or the development of facial recognition technology and vehicle-tracking technology, or the escalating use of mobile-phone tracking technology and the prospect of compulsory retention of communications data for up to six years? Every year there is more regulation, more compulsion and more surveillance. I can hear him say it: "You can't do that".
As the Information Commissioner, Richard Thomas, studiously and publicly advised the country last October vis-à-vis this Bill:
"The extent of the information retained as a core part of the National Identity Register is unwarranted and intrusive . . . It is difficult to see the relevance of all such details . . . Other systems of checks are perfectly feasible".
He also warned explicitly as follows:
"The Information Commissioner is concerned about the way in which demands will grow for individuals to prove their identity. The broad purposes permit function creep into unforeseen and perhaps unacceptable areas of private life".
As one example of that, just consider how Parliament has dealt with the illegal retention in police records of 50,000 sets of fingerprints and DNA samples. Instead of expunging them and making sure that the illegality did not recur, this Government forced
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through Section 64 of the Criminal Justice and Police Act in 2001 to validate the illegality and, much worse, allowed fingerprints and DNA to be stored in future, whether or not any citizen had been convicted or even charged with an offence. Those highly sensitive data are now held on more than 20,000 innocent juveniles. "Not innocent", I hear new Labour say, "we just didn't have the evidence". The writing really is on the wall.
The amendment, far from being a wrecking one, is an enabling one. Given the doubts about the technology, the cost, the corruptibility, the human rights and cultural consequences of this compulsory scheme, a voluntary scheme will enable us to see just how it works before the country is propelled into compulsion. If ever a proposal warranted that degree of caution and prudence, this is it.
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