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Lord Stoddart of Swindon: My Lords, I congratulate the noble Earl, Lord Northesk, on tabling this amendment. I should have thought that the Government would consider it to be very helpful. We have heard a good deal about the surveillance society. It is very much with us, and will be with us a lot more when the Bill, and other Bills to come, are passed. I feel quite sure that when Orwell wrote 1984, he did not envisage that this country would be the sort of country he wrote about. He would have been quite horrified if
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he had realised that eventually we were going to have a compulsory register and compulsory identification cards for every citizen in our land. I believe that he did not think that that could possibly apply in Britain. But, of course, here it isand it is applying.
The Minister has told us very often that the proposals in the Bill have the overwhelming support of the British public. I do not believe that is true. It may be that a focus group has come up with 72 per cent in favour, but I can assure her that the conversation on the busesI do not know whether she ever goes on the busesand my postbag tell me that there is a large opposition to this measure. The more people know about it and the more people begin to understand what is at stake, the less they like it. Indeed, Swindon Borough Council, I am glad to say, passed a resolution last week against the imposition of identity cards and an identity register.
There is much that should concern us about the Bill. The good thing about this amendment is that it will at least give some reassurance to those people who are concerned that their individual liberty and their individual circumstances could be affected by the Bill, particularly when the register and the ID cards become compulsory.
Baroness Anelay of St Johns: My Lords, I support my noble friend's important amendment, which gives practical clarity to the provisions governing the disclosure of information. He has done so against a background of reminding us of some of the concerns that there are currently in this country about the way in which information may or may not be disclosed. Where it is right for information to be disclosed, we are all concerned to ensure that, for example, children in vulnerable situations are protected. But there is some confusion on these matters.
I am grateful to the right reverend Prelate the Bishop of St Albans for asking the question that he did. I know it gently drifted away from the amendment but I hope the Minister will be able to respond to it. I listened to the same radio broadcast as the right reverend Prelate and it struck me then that the Home Secretary was taking a rather different stance from that which is being presented to us here. In front of us we have a Bill which is intended to link from the word go the passport to IDinitially compulsorilywhen you apply for a new document. I tabled amendments at the Committee stage which probed the issue of how soon the driving licence would come in as the designated document.
But this is the first time that the Home Secretary has mentioned in one breath the passport and in the next breath the Criminal Records Bureau, forgetting all the rest. That is a cause for concern and I understand exactly why the right reverend Prelate mentioned that against the background of the importance of volunteering. So, although he was drifting away from the amendment, it was an important point to make.
My noble friend has argued his case with devastating logic and it would not be right for me to go over the arguments again in detail. As my noble friend said, it is important to have something which acts as a
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belt and braces for the Human Rights Act and the Data Protection Act and gives the National Identity Scheme Commissioner and the Information Commissioner sharper teeth. The amendment does so in a very sensible way.
Baroness Scotland of Asthal: My Lords, I have listened with great care and interest to all the comments that have been made. I think it is wonderful when one has four Earls speaking to one amendment. I commend them for that if nothing else.
If one looks at the matters that have been spoken to in relation to the amendment, one finds that two issues have been conflated, so let me separate them out. The first issue concerns DNA, and the other concerns the use to which it should be put in relation to ID cards. I hope that I have made it clear throughout our debate that DNA is not included in Schedule 1 and therefore cannot be stored on the register. Nor are there powers to take DNA samples.
To put the matter entirely beyond doubt, I am happy to tell your Lordships that the Government intend to bring forward an amendment at Third Reading to limit the registrable facts under Clause 1 to external characteristics, which is something that we debated long and hard when the matter was raisedby the noble Lord, Lord Phillips of Sudbury, in particularin relation to how to differentiate between internal and external characteristics. The issue of a future government was raised by the noble Earl, Lord NortheskI am constantly being told that I am very benignas a way to undermine my argument. A future government would be prevented from adding DNA to the information that might be added to Schedule 1 by affirmative order. I hope that we can put the debate on DNA to bed. It will not be part of this Bill.
I can tell the noble Earl, Lord Northesk, that it is not right to suggest that the provisions in the 2001 and 2003 Acts have been unmerited in any way. I hope that the noble Earl was present when I said that more than 3,000 cases have been identified as a result of that material, including rapes and murders. One that stands out in my mind is a 20 year-old offence of the rape and murder of a 14 year-old girl, which was discovered as a result of a minor offence being committed some 20 years later. We are not saying that DNA has not some significance, but DNA and ID cards should be separated.
Before continuing, I should mention the suggestion that the Secretary of State should issue the guidance. I confess to being a little surprised, given the trenchant criticisms of the Home Office during our debates on the Bill, that noble Lords would want my right honourable friend the Home Secretary, or his successors in title, to be responsible for guidance on information sharing to all public authorities. That is surely the function of the independent Information Commissioner and should be properly dealt with in that way.
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On the issue of contactless ID cards raised by the noble Earl, Lord Northesk, I should make it clear that it is currently planned that an ID card will be valid for travel within the EEA. As a result it must comply with the standards established by the International Civil Aviation Organisation. Thus, all countries are considering this very same matter. Standards stipulate that a travel document, such as an ID card, will have to have a contactless or proximity chip. It will require the card to use radio frequencies to allow the card to be read at very short distances of approximately 0 to 2 cm from the reader. That is somewhat similar to the Oyster card used on London transport. To prevent the information on such chips being read at a greater distance, the card will implement basic access control, which requires that the machine readable zonethe MRZprinted on the face of the card is scanned and the information then used to unlock the read and request data from the chip.
As with e-passports, which the UK Passport Service is beginning to issue from this year, an attempt to read the chip without using the information printed on the MRZ to unlock it will yield no data that can be used to identify an individual. The worry of the noble Earls, Lord Erroll and Lord Northesk, is not merited. The conspiracy theory that the noble Earl, Lord Northesk, seems to be promulgating about the style of tracking will not occur.
As for CCTV cameras, I very much take on board the issue raised by the noble Lord, Lord Selsdon. It amplifies how many of the public want to have better protection and want the facility of CCTV cameras. Indeed, we know that they are extremely useful in the detection of crime, not only in relation to terrorists but in identifying recent criminal offenders. None of that bites on this.The noble Earl's amendment would require the Secretary of State to draw up and disseminate guidance to recipients of information from the register relating to disclosure of that information between and among them.
The noble Earl stressed the importance of data protection and we do not disagree with him. However, the amendment, notwithstanding the fact that it is supported by a number of noble Lords, is misguided. It seeks to give the Secretary of State a role which is more appropriately fulfilled by others, as I have already indicated. Guidance on onward disclosure would necessarily relate predominantly to the legal position. The extent to which, and the circumstances in which, onward disclosure of information by a person who would have received it under these clauses would be lawful would depend on the statutory or common law powers of that particular person and the application of various restrictions from the Human Rights Act through the Data Protection Act to common law duties of confidence. The noble Earl was right to remind your Lordships that I made those points when we last discussed this.
The police have powers which are different from those of the security agencies, which are in turn different from those of government departments. Recipients of information from the register will no doubt take advice from their respective legal advisers
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on disclosure of information, wherever that information is derived from. It is not appropriate for the Secretary of State, in exercising his functions under the Bill, to be under an obligation to provide what would amount to detailed and tailor-made legal advice to a wide variety of people, all of whom are already getting that advice from its proper source.
Subsection (3) of the amendment provides that the guidance produced by the Secretary of State would in particular have to deal with matters such as the security of information and the period of retention. Those are exactly the kind of matters which are governed by the Data Protection Act. In so far as the noble Earl is proposing that guidance should be given in complying with the obligations which derive from the Act, I gently remind him of the primary duties of the Information Commissioner, which are set out in Section 51 of that Act. The first two subsections provide:
"(1) It shall be the duty of the Commissioner to promote the following of good practice by data controllers and, in particular, so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers.
(2) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about the operation of this Act, about good practice, and about other matters within the scope of his functions under this Act, and may give advice to any person as to any of those matters".
I take this opportunity to remind the House of some of the safeguards for which the Bill makes provision in relation to those to whom information may be provided from the register. Clause 24(2) requires the National Identity Scheme Commissioner to keep under review the arrangements made by those who can be provided with information from the register for obtaining, recording and using the information. Furthermore, as a result of government amendments, accreditation for organisations provided with information under Clauses 19 to 22, which are not specified in the Bill, will be compulsory. Finally, under Clause 26(2), the Intelligence Services Commissioner is empowered to keep under review the acquisition, storage and use by the intelligence services of information recorded in the national identity register as well as the provision of that information to any member of those services.
I hope that I have been able to persuade the noble Earl, Lord Northesk, and other noble Earls who have spoken, together with the noble Baroness and the noble Lord, that to include this further obligation on my right honourable friend or his successors in title is not necessary. Advice on the circumstances in which disclosure would be lawful is that it really is not an appropriate matter for the Secretary of State. It would be tailor-made to each recipient, having regard to the statutory and common law regime surrounding the recipient.
It is quite clear that it is better for the commissioners to do this jobthey are better placed to do it independently and thoroughly, with the appropriate rigour and vigourthan it would be to ask my right
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honourable friend the Home Secretary simply to duplicate all that work. For those reasons, I hope that the noble Earl will withdraw his amendment.
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