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The Earl of Erroll: My Lords, I seem to remember that the whole point about the previous amendment was that the Information Commissioner would keep a beady eye on all this stuff on our behalf and everything would be fine—which is why we did not need the extra protection of Amendment No. 76. The word "uses" surely means data sharing, among other things. I would not necessarily call data sharing an arrangement. If it is trying to provide information, it is a use. I am sure that clever lawyers in government departments who wanted to get the information could argue that. I therefore believe that we need the word "uses" here, or we need Amendment No. 76 back.

Baroness Anelay of St Johns: My Lords, I too thank the Government for tabling their amendment. It meets the commitment in their letter to noble Lords which followed our Committee debates. In the letter, they maintained that they had always intended that the National Identity Scheme Commissioner should as part of his function keep under review the development and operation of the complaints procedure to provide some kind of reassurance that the register is secure and reliable. They also maintained in the letter that they believed that the Bill already gives them the power to do that, but they offered to table an amendment to clarify the matter. That is what they have sought to do here. The whole question has been whether we are 100 per cent grateful or whether we feel that there is greater mileage in having greater clarity with regard to other amendments that have been tabled.

I have tabled two amendments with my noble friend Lord Crickhowell—Amendments Nos. 83 and 84—but there is a more important amendment to come, on which my noble friend will lead, in regard to where a report is laid. I therefore feel that it would be churlish to push ahead on Amendments Nos. 83 and 84. Although I would have preferred Amendments
 
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Nos. 83 and 84 to have been accepted, I am not going to go to the stake on the issue if there are other robust safeguards. I think that the House has already decided on one with the appointment of the commissioner. I hope that the Government will be able to accept my noble friend's Amendment No. 85 with regard to a report being directed at Parliament and not via the Secretary of State.

In soft pedalling and assisting the Government on Amendments Nos. 83 and 84, I am still not satisfied with the way in which the Minister sought to address the issue in Amendment No. 78, which has been tabled by the noble Lord, Lord Phillips of Sudbury. I agree with the noble Lord that, to coin a phrase, it is not appropriate to forge ahead on this one today given the other aspects of the debate and the other amendments on the role of the commissioner.

I am rather perplexed that the Government say the words "and uses" should not be inserted. I agree with the noble Earl, Lord Erroll, about what those two words should cover and that they should be on the face of the Bill. The Minister has not fully satisfied me on this issue but, as the noble Lord, Lord Phillips, said, it is not something on which I am going to go to the stake.

Baroness Scotland of Asthal: My Lords, I hope I can clarify the issue in relation to "uses". The uses to which ID cards are put have a direct role in the two matters dealt with by government Amendment No. 77, which relates to paragraphs (a), (b) and (c) of Clause 24(2), but not to paragraph (d). That is why in opening in support of my Amendment No. 77—we discussed this at some length and that is why I was reluctant to do it all over again—I said that the "arrangements . . . for using" in Clause 24(2)(c) would in this context include "uses". Therefore Amendment No. 78, which seeks to add the word "uses" into the government amendment which clarifies the scope of Clause 24(2) is particularly inappropriate. The word "uses", as opposed to "arrangements . . . for using", does not appear in the subsection which is being clarified. Our amendment relates to paragraphs (a), (b) and (c) of Clause 24(2), but not to paragraph (d), which is why I say that it is correct.

I absolutely understand noble Lords' concerns. We wish to draw Amendment No. 77 with the appropriate level of acuity. We believe that we have done so, because it does not relate to paragraph (d). With that further clarification, I hope that noble Lords opposite and the noble Lord, Lord Phillips of Sudbury, will be appropriately grateful.

Lord Phillips of Sudbury: My Lords, I fear that my legal intelligence may be much exercised and long in years, but it has always had a lumpen quality about it. I still do not follow the Minister's arguments but no doubt I will when I look at them in Hansard. If I do not, I shall certainly not refrain from bringing the amendment back at the next stage, especially as I have had a great deal of support from other noble Lords. However, at this moment, I beg leave to withdraw the amendment.
 
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Amendment No. 78, as an amendment to Amendment No. 77, by leave, withdrawn.

[Amendments Nos. 79 to 82, as amendments to Amendment No. 77, not moved.]

On Question, Amendment No. 77 agreed to.

[Amendments Nos. 83 and 84 not moved.]

5.30 pm

Clause 25 [Reports by Commissioner]:

Lord Crickhowell moved Amendment No. 85:

Page 22, line 26, leave out "make a report to the Secretary of State" and insert "lay before each House of Parliament a general report"

The noble Lord said: My Lords, we now come to what I believe are two very important amendments. In considering the Bill, we must have as our first and primary responsibility the protection of the interests of the citizen. That should also be the first and primary responsibility of the National Identity Scheme Commissioner.

The noble Baroness believes that the primary job of the commissioner is to advise the Secretary of State and to reassure him that the identity card scheme is operating correctly. That somewhat bizarre proposition was contained in the Minister's response to the seventh report of the Select Committee on the Constitution, which recommended that the commissioner should report directly to Parliament—exactly as the Information Commissioner does, which seems a pretty good precedent. I urge the House to reject the proposition advanced by the noble Baroness and to accept Amendment No. 85, which would ensure that the commissioner lays reports before each House of Parliament.

The existence of the register and the way in which it is used—or misused—are not trivial matters. They will affect fundamental rights and freedoms. As we discovered during our lengthy examination of the Bill, the Government are taking wide powers to amend the legislation by order. The noble Baroness, on day 6, acknowledged at col. 1518 that while there was no commissioner dealing with passports or driving licences, the Government recognised that the introduction of the identity card scheme, "raises additional issues", and so believed that it was right to create what she termed a "new level of oversight".

We can surely agree that the matter raises additional issues. It creates the register to which a large number of organisations will have access. If we are to have a new level of oversight, surely in logic the commissioner should report to Parliament and not to the Secretary of State, whose department and agencies he is overseeing. It is crucial that the commissioner has the widest possible freedom to do his job and to report what he deems appropriate, subject only to restrictions regarding issues relating to security and crime prevention, contained in Clause 24(3), which we discussed in the previous group. In addition to the topics excluded by that clause from the matters that the commissioner is to keep under review, and which
 
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he can report on, my Amendment No. 85A will exclude from his report subjects which, after consultation with the Secretary of State, the commissioner judges to be prejudicial to security or the detection of crime.

The noble Baroness built her case to send the report directly to the Secretary of State around those security questions. In practice, and because of the combination of the two provisions to which I have referred, that argument cannot be sustained. The Minister may argue that Clause 25(3) requires the Secretary of State to lay before Parliament a copy of any report made to him by the commissioner, but that is not the same thing at all.

Noble Lords with experience of how government works will envisage clearly the pressures that will be placed on the commissioner to exclude from his report any material that the Secretary of State would prefer to keep from Parliament and the people. That is particularly likely in the case of the Home Office. It is a great department of state, and it knows it. There is a certain feeling of superiority that makes those who work there feel that they are perhaps rather better than others—the hoi polloi. It is the sort of attitude that I first experienced rather painfully in my first days as a member of the Cabinet dealing with the sensitive issues of Welsh language broadcasting.

I have had other experience—not with the Home Office, but with other departments. Mine was an unusual pattern, in that I was first a Cabinet Minister for eight years and then for eight years I chaired a very large quango—the National Rivers Authority. In our early days we established an enviable reputation for robust independence. Over the years that followed, both the department and the Minister of State responsible for agriculture sought delicately to assert some influence over the line that we should take. It was all beautifully done—very seldom did the Secretary of State himself intervene. There would be a telephone call from a senior official, many of whom were close friends, and whom I greatly respected. There were clear implications that altogether life would be much smoother if we took a rather different line. There was a great deal of press briefing that Lord Crickhowell had gone native on the environment, which I took to be a considerable compliment. It was an indication to my successor when he took over at the Environment Agency that perhaps they would value and support someone who was rather less independent.

Partly on the basis of that experience, I do not want the commissioner to be placed in a situation when such pressures can be easily applied. I want him to be a free, independent and robust defender of the interests of every citizen whose name will have been placed compulsorily on the register, reporting not to the Secretary of State, but about the Secretary of State and his agency's management and conduct of the ID cards project and the register. I want his reports to be placed before Parliament directly, not indirectly. It is
 
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Parliament, not the Executive, which is the proper defender of the interests of citizens and their rights. I beg to move.

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