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Standing Committee D
The Committee consisted of the following Members:
Chairmen: †
Mr. Roger Gale, Mr. Jimmy Hood
†Baird, Vera (Redcar) (Lab)
†Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
†Borrow, Mr. David S. (South Ribble) (Lab)
†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Drew, Mr. David (Stroud) (Lab/Co-op)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Farron, Tim (Westmorland and Lonsdale) (LD)
†Garnier, Mr. Edward (Harborough) (Con)
†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)
†Mercer, Patrick (Newark) (Con)
†Mountford, Kali (Colne Valley) (Lab)
†Palmer, Dr. Nick (Broxtowe) (Lab)
Prisk, Mr. Mark (Hertford and Stortford) (Con)
†Robertson, John (Glasgow, North-West) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Wallace, Mr. Ben (Lancaster and Wyre) (Con)
John Benger, Emily Commander, Committee Clerks
† attended the Committee
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Tuesday 19 July 2005
(Afternoon)
[Mr. Roger Gale in the Chair]
Amendment proposed [this day]: No. 80, in clause 24, page 21, line 28, leave out from ‘Commissioner’ end of line 43 and insert
‘include general policy matters, but do not include—
‘(a) the exercise of powers which under this Act are exercisable by statutory instrument or by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I.1979/1573 (N.I.12)) unless any particular case affected by these powers or rules raises a concern of substantial public interest;
(b) the imposition of civil penalties, objections to such penalties or appeals against them, unless a particular penalty, objection or appeal raises a concern of substantial public interest;
(c) the operation of so much of this Act or of any subordinate legislation as imposes or relates to criminal offences in any particular case, unless a particular case raises a concern of substantial public interest;
(d) the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest; or
(e) the provision to another member of the intelligence services, in accordance with regulations under section 23(5), of information that may be provided to that Director-General, Chief or Director in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest.’.—[Mr. Garnier.]
4 pm
The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 184, in clause 24, page 21, line 28, leave out ‘do not’ and insert ‘shall also’.
No. 81, in clause 24, page 21, line 29, leave out paragraphs (a) to (c).
No. 220, in clause 24, page 21, line 36, after second ‘service’, insert
‘the Chief Executive of the Serious and Organised Crime Agency’.
No. 82, in clause 24, page 21, line 43, at end insert—
‘(3A) ‘The Commissioner may, where appropriate—
(a) before undertaking a review which include the policy towards the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters, liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner, or
(b) liaise with the Information Commissioner in relation to any processing of personal data.’.
The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): Welcome to our deliberations, Mr. Gale. Before the break, I was drawing my remarks on amendment No. 80 to a close.
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The only substantive point to make is about oversight in relation to an excluded matter when a particular case raises a concern of substantial public interest. I said that the notion that clause 24(3)(a) to (g) in any way deliberately limits the commissioner’s role is not correct. These jurisdictions overlap with those of other commissioners and bodies, including Parliament. However, I want to discuss the fair point about a concern that is of substantial public interest.
To a large extent, the amendment is seeking to do something that the clause does already. Let us take proposed paragraph (b) of the amendment. While it is not for the commissioner to review the actual exercise of delegated powers—that is Parliament’s role, not the national identity scheme commissioner’s—it is clear from subsection (2)(a) that it is the commissioner’s role to review the Secretary of State’s functions
“under this Act or the subordinate legislation made under it”.
In so far as statutory instruments, regulations and statutory rules in a Northern Ireland context need reviewing within the context of the Act, that is already covered under subsection (2)(a). It is right to exclude the wider scrutiny role of subordinate legislation in general terms, which is the purview of this place, from the commissioner’s deliberations.
To use the language of the proposed paragraph (a), I refer to the position in which
“any particular case affected by these powers or rules raises a concern of substantial public interest”
under the Bill. That will obviously fall within the jurisdiction of the commissioner.
By referring to appeals against civil penalties, proposed paragraph (b) of amendment No. 80 would do precisely what clause 24(3)(b) does. Appeals are for the civil courts and it would be inappropriate for the commissioner to have an overlapping jurisdiction. However, it is right that the commissioner has oversight of the rest of the civil penalties machinery, because that will be run by the Secretary of State and, without the commissioner, would not be subject to an oversight. Therefore, proposed paragraph (b) of the amendment, which would remove that part of the commissioner’s jurisdiction, is inappropriate.
Proposed paragraph (c) of the amendment would enable the commissioner to examine the prosecution of a person for a criminal offence under the Bill if that raised a matter of substantial public interest. I do not believe that that is right. Prosecutions are a matter for the police, the Crown Prosecution Service and the courts. In exceptional circumstances after the event, a prosecution will be the subject of an inquiry. It would be unusual to empower a commissioner to review prosecutions that he considered would raise a matter of substantial public interest. Although I understand the grain of the amendment, it is not necessary for the reasons that I have outlined.
Proposed paragraphs (d) and (e) would give the commissioner jurisdiction to review the provision of information to the security services, again subject to the substantial public interest test. The reason for leaving national security matters to existing statutory commissioners, who were created specifically to deal with national security matters, is obvious. I am
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referring to the overlapping of jurisdictions with existing commissioners. We do not want such sensitive issues to be dealt with in wide-ranging forums. It is better that they be dealt with by those who deal with them daily. Although I understand in which direction the hon. and learned Member for Harborough (Mr. Garnier) wants to draw us, I do not believe that amendment No. 80 is appropriate. It has raised some interesting points, but I ask him to withdraw it.
Mr. Edward Garnier (Harborough) (Con): I shall seek leave to withdraw the amendment because it can probably be more fully discussed on another occasion.
The hon. Member for Broxtowe (Dr. Palmer) made one of his usual interesting and wholly Delphic interventions. He fails to understand—it is probably not his fault because he has not been an Opposition Member of Parliament, having come straight to the Government Benches in 1997, or 2001—
Kali Mountford (Colne Valley) (Lab): 1997.
Mr. Garnier: I stand corrected. The hon. Gentleman fails to understand the restrictions under which the Opposition must work on the Floor of the House and in Committee. They must do their best to create opportunities for debate, to hold the Government to account and to tease out their policy, particularly with a Christmas tree Bill such as this, which gives the Secretary of State huge powers to do things in the name of the state. The Government have not condescended to give us the details at this necessary stage.
The hon. Gentleman will forgive me if I tease him slightly. This is not a court of law or a place where the burden of proof is deployed. It is not even a place where any standard of proof must be deployed. It is not an intellectual debating society, but the rough and tumble of Parliament. It is not a perfect way of dealing with the matter and I accept his implied criticisms that some of our amendments would do things that in his eyes are illogical or contrary to the public interest.
The purpose of all our amendments is to get the Government to explain themselves or, if they will not, to meet them head on and to test the will of the Committee by seeking a vote. The hon. Gentleman knows as well as I do that we can never win a vote if the Government have their people here. Although we may win arguments, I cannot engage in a sensible intellectual argument with him about the merit of the policy because, at the end of the day, the Government will simply say, “Very interesting. Let us have a Division and defeat the Opposition.” That is Parliament and I am not complaining about it. I have got used to it since 1997, but if he has a spell in opposition—I trust that he will have that opportunity in due course—he will realise that there are more perfect ways of holding a Government to account. However, that is all in parenthesis to what the Minister said.
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There will be other opportunities to debate as parliamentarians the issues covered by our amendments. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Patrick Mercer (Newark) (Con): I beg to move amendment No. 83, in clause 24, page 22, line 8, at end insert
‘to a maximum of 10 members of staff’.
I welcome you back, Mr. Gale. It is good to have you with us.
The amendment is simple and seeks to discover what the national identity scheme commissioner will look like when he exists, red in tooth and claw. How will the Government appoint him and what will his establishment look like? Subsection (6) states:
(a) after consultation with the Commissioner, and”—
the grammar is strange—
“(b) subject to the approval of the Treasury as to numbers,
must provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.”
The amendment would add,
We want, purely and simply, to find out exactly what the commissioner’s establishment will be, how much it will cost and how much it will add to the overall cost of this already exorbitantly expensive scheme.
Mr. McNulty: As the hon. Gentleman implies, amendment No. 83 would limit the commissioner’s staff to 10 people. Although the Government have not determined how many people would be required to work for the commissioner, we have given the matter some initial consideration and simply do not believe that it is possible for the commissioner to carry out his functions with so few people, not least because his functions have been extended following the Home Affairs Committee’s recommendations to include not just oversight and the provision of information from the register but the general operation of the scheme. The Government consider that it is for the commissioner as well as the Treasury to be consulted when determining staff numbers. That will ensure that the commissioner has sufficient resources to undertake his statutory functions, but no more than necessary.
It is entirely standard practice to provide such a safeguard; for example, it was used in the Regulation of Investigatory Powers Act 2000 for the establishment of the Intelligence Services Commissioner. We are not about to be profligate with public resources in respect of the staff that the national identity scheme commissioner needs. Hon. Members will understand that his role is key to the overall scrutiny of the system, certainly as it is introduced and beds down. We do not want unduly to limit his staff numbers in quite the way that the hon. Gentleman seeks to do.
Tim Farron (Westmorland and Lonsdale) (LD): Will the Minister reflect on one small point: the difference in tone between Liberal Democrat
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opposition to the Bill and that of the Conservatives? If it were to come to a vote, my party would not support the amendment. It appears that the motivation of the official Opposition is simply to limit expenditure, whereas our concern is to ensure that the commissioner has the greatest ability possible to scrutinise the system. The limit suggested by the Conservatives would perhaps save a few pence here and there, but it would limit his effectiveness.
Mr. McNulty: I am grateful for the import and flow of that intervention, if nothing else. The hon. Gentleman will forgive me if I do not take much notice of the Liberal Democrat tone—it varies from day to day, street to street, ward to ward and constituency to constituency. However, in good order and with good spirit, I accept the flow of his comments—for today. No doubt they will change tomorrow or next week.
The Government are clear that a staff of 10 is not sufficient for the commissioner to carry out his task. With that sentiment, I ask the hon. Member for Newark (Patrick Mercer) to withdraw the amendment.
Patrick Mercer: I have listened to what the Minister has said. As usual, his argument has been lucid.
I accept the fact that the commissioner is not yet established. Although I believe that the addition that we would make would help and assist, I take it that the Minister’s reassurance about subsection (6)(b) means that, to all intents and purposes, the amendment will be observed in the principle if not in the letter. On that note, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Reports by Commissioner
Mr. Garnier: I beg to move amendment No. 84, in clause 25, page 22, line 16, leave out from ‘must’ to ‘State’ and insert
‘lay before each House of Parliament a general report’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 85, in clause 25, page 22, line 18, leave out subsections (2) to (5) and insert—
‘(2) The Commissioner may also, at any time, lay before each House of Parliament such other reports on any matter relating to the carrying out of those functions as the Commissioner thinks fit.’.
No. 86, in clause 25, page 22, line 18, leave out subsection (2).
No. 87, in clause 25, page 22, line 21, leave out subsection (3).
No. 88, in clause 25, page 22, line 25, leave out from ‘would’ to end of line 27 and insert
‘cause substantial harm to the public interest’.
No. 89, in clause 25, page 22, line 26, leave out from ‘security’ to end of line 27.
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No. 90, in clause 25, page 22, line 27, after ‘of’, insert ‘serious’.
No. 221, in clause 25, page 22, line 33, at end add—
‘(6) Any statement laid under subsection (5) must provide an explanation of why a matter has been excluded.’.
4.15 pm
Mr. Garnier: Amendment No. 84 stands in my name, the names of my hon. Friends, and the name of the hon. Member for Orkney and Shetland (Mr. Carmichael). The amendments can be divided into two sections. The first deals with the balance of power between the Executive—the Home Secretary—and Parliament, and the second deals with the power to edit the report. As Opposition Members, we are keen that the balance of power should be redressed—as I said earlier, it is out of kilter—and that Parliament should have a greater say in the commissioner’s reporting function. If the Secretary of State is to control the reports that are laid before Parliament, and if the commissioner has first to report to him rather than directly to Parliament, we should be told if not what the commissioner has had to edit, at least when he has had to edit his report or reports at the request of the Secretary of State. It is not clear in the Bill whether items or sections of the commissioner’s report that are removed from the report placed by the Secretary of State before Parliament will have been redacted or simply removed without Members of Parliament knowing what has been taken out.
Time does not permit me to read out each amendment in the group under discussion, but there is a serious argument and an issue to be joined between Parliament and the Executive. Here we are in Parliament trying to control the Executive over where the power to dispose should rest. Clause 25(1) states that
“the Commissioner must make a report to the Secretary of State about the carrying out of the Commissioner’s functions.”
Since, as the Government would have it, the commissioner is appointed by the Secretary of State subject to all the public appointments issues that the Minister mentioned, no doubt the Government think it right that the commissioner must report to the Secretary of State.
We, on the other hand, say that, despite the fact that the commissioner will be appointed by the Secretary of State, the commissioner is carrying out a public function for which he should account to Parliament, not because we distrust the commissioner, but because this is a hugely important issue of public policy. It is a whole new departure in the relationship between the state and the individual, and we, as protectors of the rights of the individual, the constituent and any individual who may not be a citizen but who happens to be within our shores, should have the right to inspect and to demand of the commissioner his report.
Amendments Nos. 85, 86 and 87 essentially make the same point. They would command the commissioner to account to us rather than to the Secretary of State. I can understand that as a matter of common sense the commissioner and the Secretary of State may discover matters about crime and terrorism
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about which it would not be sensible for the public to know. None the less, even if the commissioner cannot tell us everything, he should at the very least present via the Secretary of State a report that blacks out what cannot be seen, so that we know precisely what exercise the report has been through before it was presented to Parliament.
That is the essential import of our two sets of amendments to that one line. I shall not labour the point further, save to say that in relation to amendment No. 221, the provision requires an explanation, which I hope that the Government shall not feel inhibited from giving to Members of Parliament.
Mr. Tobias Ellwood (Bournemouth, East) (Con): The method by which parliamentarians can keep track of the progress of this legislation will be key to the reports that are made by the commissioner. As we have debated over the past few days, the entire project of a register and of producing ID cards is massive from a financial as well as a technical point of view. In many ways, the project is untested, so it is imperative that Members have an opportunity to monitor its progress and comment on it.
Will the Minister clarify how Parliament can take advantage of the reports in order to understand what the commissioner is doing and implement those reports? Bearing in mind the security-related nature of the reports, I am concerned that they may never see the light of day. My worry is that matters can be hidden behind some of the provisions, which means that we will not have an opportunity to discuss the reports, take on board public opinion and mould the project in such a way that it is palatable and appropriate.
Mr. McNulty: In the Government’s response to the Select Committee on Home Affairs, we accepted the recommendation that the national identity scheme commissioner should have broader oversight of the whole scheme. That is broadly provided for in clauses 24 and 25. The commissioner’s remit will therefore include examining the uses to which ID cards are put and the dealings with recipients of information held on the register, and it is not limited to the administration and issuing of the cards. We accepted those points, which were raised by the Home Affairs Committee.
While I appreciate the arguments in support of the amendment, the Government consider it necessary for reports to be addressed to the Secretary of State, with the potential for parts of a report to be excluded from the version laid before Parliament. That is the case primarily because of the function of the commissioner in overseeing the provision of information without consent. As I shall discuss later, many of the concerns of the hon. and learned Member for Harborough are dealt with in the clause.
There are precedents for this situation in the oversight of police activities, which falls to the Office of the Surveillance Commissioners. The chief surveillance commissioner reports annually to the Prime Minister and has similar discretion to that set out in the clause. Similarly, when Her Majesty’s inspector of constabulary reports to the Secretary of
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State, he has the power to exclude from publication any part of the report that would be against the interests of national security or might jeopardise the safety of any person.
The amendments would remove the Secretary of State’s discretion to exclude information held in a report where he considers that a matter contained in the report would be prejudicial to national security or the prevention or detection of crime. Given the sensitivity of some of the information relating to provision of information without consent, there are certain circumstances in which it would be prejudicial to these matters if a report were laid in Parliament that could be publicly read.
For example, the commissioner will have responsibility for oversight of the provision of information without consent to the Serious Organised Crime Agency. It cannot be in the public interest or Parliament’s interest for those matters to be in the public domain. To make public the purposes for which that organisation had been provided with information in every case would allow very sensitive information to be released. It would also be inconsistent with the usual oversight procedures for these bodies and, as such, may limit their use of the register. That would impinge on those bodies and their efficacy—in this case, in fighting organised and serious crime. Again, that cannot be in the national or public interest.
I do not think it is appropriate either to raise the exclusion threshold to “serious” crime, since information may be provided without consent under the previous clauses for all crime. The Government therefore see the power to exempt information as necessary. There are safeguards to the use of the power, however. The Secretary of State must consult the commissioner before any part of a report is excluded from publication. Decisions are not simply made on a whim of the Secretary of State. The practice of the intelligence services commissioner and the interception of communications commissioner is to provide a report to the Prime Minister in two parts; one is to be laid in Parliament, and there will also be a confidential annexe not for publication. If such a practice were adopted by the commissioner, it would effectively allow him to recommend which parts of his report should be made public, although this will be done in consultation with the Secretary of State.
We have listened to the arguments made about the power to exclude information from the reports. Observant Opposition Members will have noticed that this Session’s Bill no longer allows matters to be excluded on the ground that they would be prejudicial to the continued discharge of the functions of any public authority or would be otherwise contrary to the public interest. Those elements were in the previous Bill, but we dropped them from this one. If a matter were excluded from the report, a statement would be laid before Parliament to that effect, just as it is in relation to reports made by the commissioners whom I have mentioned. The relevant provision is subsection (5).
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I do not consider it necessary for an explanation to be provided as to why a matter has been excluded. As I mentioned, only two bases are left in the Bill on which matters can be excluded: where something is prejudicial to national security or to the prevention or detection of crime. Providing further explanation may well result in those aims being frustrated, and bodies that are doing serious business in the public and national interest may be hidebound or restricted in their ability to use the register.
I am sure about that view, despite the points that have been made concerning the relationship between the Executive and Parliament in relation to scrutiny, which I accept. I am sure that it is not the intention of the amendment to debilitate in any way the ability of the Serious Organised Crime Agency and others to utilise the register. In that context, I ask the hon. and learned Gentleman as pleasantly as I can to seek leave to withdraw the amendment.
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