Identity Cards Bill |
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Andy Burnham: As the hon. and learned Member for Harborough explained, the clause will create three new offences: first, possessing false identity documents with the intention of using them to establish registrable facts about a person and thus committing what is now called identity fraud; secondly, making or possessing any equipment that could be used to make false identity cards with the intention of committing or enabling someone else to commit identity fraud; and thirdly, possessing false identity documents without reasonable excuse. Those new offences are designed to give the police an extra tool to disrupt terrorist and organised crime networks. If a person is in possession of a false document and it can be shown that they intend to use it, on indictment there is a maximum sentence of 10 years, as the hon. and learned Gentleman said. However, the offence of possession without reasonable excuse can apply even before use has been made of false documents or their intended use can be shown. That offence is triable either way; on indictment, the maximum penalty is two years. Amendment No. 93 would increase the sentence for possessing a false identity document with the intention of using it from 10 years to 12. Amendment No. 94
The hon. and learned Gentleman asked how we had come up with our figures; I shall explain that to him with reference to other legislation. Section 5 of the Forgery and Counterfeiting Act 1981 makes it an offence for a person to have in his possession an instrument that he knows or believes to be false with the intention of inducing someone to accept it as genuine. The offence is subject to a maximum 10 years’ imprisonment. It is sensible to bring the maximum penalty for a similar offence in line with such legislation. The hon. and learned Gentleman will know that the 1981 Act has been the principal Act of Parliament governing the use of forged documents, and the similar sentence in this Bill is consistent with it. Furthermore, having an offence of possessing forged documents and intending to use them is an attempt to bear down on the sophisticated gangs that use vast quantities of forged documents to perpetrate people trafficking, smuggling, and terrorist and organised crime networks. Ten years is a substantial sentence that is proportionate and consistent with other legislation. Imprisonment for two years for possession of false documents without reasonable excuse should serve as a deterrent against terrorist activities, organised crime operations and those who traffic illegal or sex workers. Given the absence in the offence of any requirement of intention to use, I took the view that a maximum penalty of four years would be too high. I refer the hon. and learned Gentleman to clause 30, which contains an offence of providing false information in an entry on the register to obtain an ID card. The two-year penalty is consistent with that. We think it is balanced and right. Clause 27 provides that a maximum penalty on summary conviction in England and Wales is 12 months, and in Scotland and Northern Ireland six months. The hon. and learned Gentleman was absolutely right to refer to the Criminal Justice Act 2003, which has given magistrates the power to extend sentencing to a maximum of 12 months. Amendment No. 95 would replace the reference to 12 months with one to six months. We want to ensure that the Bill complies with the 2003 Act and enables magistrates to use the full range of sentencing options that the Act gives to them. The Act also provides for the concept of “custody plus”. Once that is in force, instead of imposing a six-month sentence, of which three would be served, magistrates will be able to impose a sentence of 12 months, of which a maximum of three will be spent in custody and up to nine under supervision in the community. The Bill has been drafted so that once the powers of magistrates in England and Wales are increased, they can make full use of them in relation to the three offences that I have mentioned. We think that is right. Mr. Garnier: Will the Under-Secretary help me with two points? First, is the subsection (5) offence, which is possession of one of those documents or instruments
It may be more appropriate to deal with my second question when we consider the next clause, and I do not wish to burden the Committee with my personal reminiscences, but wearing another of my hats, I have sentenced somebody under the Forgery and Counterfeiting Act 1981 to quite a lengthy term of imprisonment for entering this country with a forged passport. Will this Bill and the offences under clause 27 replace those relating to use of a forged passport under the 1981 Act, or will an almost identical offence be added? Will we be duplicating or providing a wholly separate law? Andy Burnham: I shall attempt to provide the hon. and learned Gentleman with an answer. If I get any element wrong, I shall clarify the matter in writing. Proving possession and intent is obviously quite a high bar to get over, as he said. The 10-year sentence will be common when people are operating for the purposes of a serious crime. The “intent to use” limb of the offence could be difficult to prove; the offence of possession would of course be easier to prove. I shall have to get back to the hon. and learned Gentleman on whether one offence will rule out another, or whether we might try for one offence and then go for the lesser charge. It will be up to the prosecution to determine which of the two offences might be made to stick. The lesser charge obviously carries with it a much lesser sentence, and the prosecution will have to judge which offence it is right to go for. I shall come back to him on that. The hon. and learned Gentleman also asked about the two pieces of legislation and why we are not repealing the 1981 Act. My understanding is that the 1981 Act is much more general and deals with the whole range of documents. The Bill deals specifically with identity documents, and there are differences between the two sets of provisions. Mr. Garnier: I asked my second question because, under clause 28(1)(d), a United Kingdom passport is an identity document for the purposes of clause 27. The 1981 Act deals with counterfeit passports, so I want to know whether the Government are duplicating existing law unnecessarily or whether a discrete offence will be created under the Bill that does not replicate an existing offence under the 1981 Act. I am not setting an exam; if the Under-Secretary wants to write to me about the matter, I shall be happy to receive his letter in due course. Andy Burnham: I have already been summoned to the headmaster’s study once today, so I would hate to fail my test too. I have received some general information about the 1981 Act, which it would be useful to put on the record. The Act contains general references to making and using false instruments. I
The offences do not apply to improperly obtained documents or documents that belong to someone else. In that sense, the offences that the Bill will put in place go further than those outlined under the 1981 Act. As we have discussed, they are intended to close the whole sphere in which people can perpetrate identity fraud. We are increasingly aware that people have made fraudulent applications to obtain a passport, which could be a genuine document despite being acquired using false information. The answer to the hon. and learned Gentleman’s question is that the provision will broaden the range of offences that can be committed in respect of acquiring false documents or genuine documents that might have been acquired using false information. The Bill allows for that extension. I hope I have covered most of the points made by the hon. and learned Gentleman, although he also asked about the burden of proof and the reasonable excuse defence under the clause. Reasonable excuse will have to be put forward by the defendant in a case; it will then be for the prosecution to disprove. Therefore, an evidential, not legal, burden will fall on the defendant. As I said to the hon. Member for Westmorland and Lonsdale, individuals might prove lack of knowledge relatively easily if the document has been acquired without their knowledge. Mr. Garnier: I am sorry to interrupt the Under-Secretary, but he might be unwittingly misleading us. We must be careful about requiring a defendant to prove something. If such cases are to be similar to self-defence, that is a matter that the defendant will raise as an issue. He will present it to the court, but he cannot do that off the back of his head. He must have a basis on which to raise such a defence. The individual does not have to do anything more than raise the issue: he will put up the target and invite the Crown to knock it down. If the process is the same as that of self-defence, I understand what the Under-Secretary is talking about, but, given that he talked about proving matters, we need a little more clarity. Andy Burnham: I am sure the hon. and learned Gentleman will forgive me if I did not make matters clear. He is absolutely right that the defendant is not required to prove the grounds for his reasonable excuse. It is for the prosecution to knock down the case. I was simply extending the argument to say that, obviously, the individual will be safeguarded if the reasonable excuse is genuine, because it will be hard to knock down a genuine claim that there was no knowledge of the documents having been acquired. He is absolutely right about how this part of the Bill is intended to operate. 5.15 pmI will say a word about Scotland and Northern Ireland and the point that was raised by the hon. Member for Lancaster and Wyre in the last discussion.
We have had a useful discussion. The penalties in the Bill are consistent with those in existing legislation. The two-year penalty is also consistent with the penalty elsewhere in the Bill for supplying false information to the register. I can provide some further information to the hon. and learned Gentleman, who correctly picked up on the parts of the 1981 Act that deal with passports, and the duplication in legislation. I said that the Bill does not repeal parts of that Act, but in fact it does. I refer him to schedule 2, which repeals parts of the 1981 Act in respect of passports. The section 5 offence will take precedence over that Act. With those assurances, I hope that the hon. and learned Gentleman will see fit to withdraw the amendment. Mr. Garnier: Well, I will. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 27 ordered to stand part of the Bill. Clause 28 Identity documents for the purposes of s. 27 Mr. Garnier: I beg to move amendment No. 96, in clause 28, page 24, line 39, leave out ‘or purports to be’. Before introducing the amendments to clause 28, I would like just a brief discussion about the class of identity documents. Therefore, at the risk of cutting across you, Mr. Gale, I shall informally refer to amendments Nos. 97 and 98 while discussing amendment No. 96, simply because it is easier to debate them in that way, albeit that they are listed separately. The Chairman: Order. Before we proceed, it has been correctly pointed out to me that the groupings are provisional. If it helps the hon. and learned Gentleman, and if he would rather discuss amendments Nos. 97 and 98 with No. 96, he may do so on the understanding that we do not then take them separately. It is entirely up to him. Mr. Garnier: I am grateful to you, Mr. Gale. I had planned to discuss them all and then say, “Not moved” when you stood to ask me to introduce amendments Nos. 97 and 98, but I am happy to go with any procedure that suits the Committee. The Chairman: In that case, for the sake of clarity, I will say to the Committee that we are debating the lead amendment, No. 96, with which it will be convenient to discuss the following amendments: No. 97, in clause 28, page 25, line 6, leave out from ‘licence’ to end of line 8. No. 98, in clause 28, page 25, line 8, at end insert
Column Number: 403 Mr. Garnier: Thank you, Mr. Gale. I do not think there is any particular magic about the order in which we discuss these amendments. Broadly, they are all designed to deal with the same point, which is to classify the identity documents that are caught by offences under clause 27. Those documents include an identity card and “a designated document”; we have discussed that, and I have expressed my concerns about the vague nature of what a designated document is or may be. There is also “an immigration document” and “a United Kingdom passport”, which we discussed briefly in relation to the previous amendment. There is also a passport issued by another country or “an international organisation”—such as a United Nations passport, presumably, or a World Trade Organisation passport. There is also
such as a travel document issued to an asylum applicant. Interestingly, another document is a UK driving licence, which I presume can be used for identity purposes and to enable one to travel within the common travel area of the UK and the Republic of Ireland, although it is not strictly necessary in order to do that. There is also a driving licence from a country outside the UK. We are puzzled as to why a birth certificate is not included in that list of identity documents. If the Government are so keen that we should give to the identity register all the information contained in schedule 1, much of which might or might not be found in existing documents, why is a birth certificate not included? There seems to be a degree of inconsistency there. My argument on this matter needs neither repetition nor elaboration. I have made the points that I intended to make, and I look forward to hearing what the Minister has to say. Mr. Wallace: I wish to push the point made by my hon. and learned Friend the Member for Harborough. Under subsection (4), the Secretary of State will be able to designate what documents will be included, but there was an opportunity to be more specific about those documents and it has been missed. I agree with my hon. and learned Friend that a birth certificate might be included—or even a marriage certificate. However, I would ask the Government to do even more by considering including documents such as bank statements and utility bills, although I accept that it might be difficult to refer explicitly to them in the Bill. It might be said that people move house a lot, so they might often carry other people’s utility bills. However, I am confident that clause 27(5)(c) would cover that issue. When people apply for false identities, the official they are applying to might not know what an identity card—or a proper bank statement, or a Northern Ireland driving licence—looks like. How many officials in Lancaster, for example, have seen a Northern Ireland driving licence? That situation often arises even in respect of money: many people do not know what an Isle of Man pound looks like because they have never come across one. How many people in this Room have seen an international driving licence?
In order for people to open a bank account, they are told, “We need to see your birth certificate.” Once they have got a birth certificate and done that—it is not hard to get hold of someone else’s birth certificate—they can go to a utility company whose staff might say, “If you show us your bank statements, we will give you a utility bill.” A person could quickly build up a whole group of contributing identity papers that would allow them to go to the next stage. Will the Minister consider putting in the Bill the actual words “birth certificate”, “marriage certificate” and perhaps even “bank statement”, so that we can close that loophole for the future? We feel that there is a gap in the system in relation to birth certificates, for instance. I am fully aware that the Government are effectively committed to stopping the issuing of birth certificates, which will become electronic. I notice that, in the next 10 years, there is to be a move to digitise the database, and the old type of birth certificate will, no doubt, disappear. People often start low when forging identities: they start by forging anything from a video shop card to an NHS card, which has no photograph on it and is easy to forge, because it is just a 10-digit number and is pretty hard to check. That forgery builds up, layer by layer. I hope that the Minister will consider being more specific at this point, rather than later. I wonder whether there is a slight contradiction in subsection (4), which states:
Given that there is a long time before the Bill comes into force, the Secretary of State has the opportunity to start the list now and modify it later, rather than starting with a small list and adding to it in 10 years. That way, the message to our financial institutions, the customer, the citizen and everyone else will be clear. It will show people the importance of these documents, and will show that people can get into the system right now; and that, of course, is one of the ways in which many people have forged documentation. The good thing about the creation of this new offence is that, previously, many agencies and police forces had trouble holding an individual whom they wanted to charge with a terrorist or other offence if all that they had at their disposal was a forgery of a passport. This offence will, I hope, provide them with more reason to hold someone for longer, or to charge them so that they can establish the person’s identity in future. I had a case in which we identified someone, and the question of their identity was the only thing for which we could keep them past the seven-day period. Unfortunately, as they were charged on a minor offence, such as a credit-card forgery, they were bailed. Some 14 or 15 days later, we heard from the German authorities that the person was actually someone
Mr. McNulty: I thank you, Mr. Gale, and the hon. and learned Member for Harborough for putting the three amendments together; it makes far more sense to treat them in that fashion. With these amendments and the clause, we need to start from the premise that the offences in the clause were designed for documents that are useful for proving identity, and as such are extremely valuable as a day-to-day means of proving identity, such as the driving licence or passport. By any token, a bank statement is not proof of identity, although it may be proof of address, temporary or otherwise. The same is true for many of the other suggestions. Our partners may disagree, but a marriage certificate is not an identity document in any way, shape or form. I shall flit around the amendments a little. With regard to amendment No. 98, it says very clearly on top of a birth certificate that it is not an identity card, nor does it purport to be. Birth certificates are often offered as support for one of the principal documents proving identity, but we cloud the issue if we start to include such elements in the list relating to the offences under clause 27—and we are talking about those specific offences, not about the generic point of what may add to our ability to identify someone. That is why the list is deliberately discrete. However, as the hon. and learned Gentleman suggests, there is a caveat: additions to the list can be made by the affirmative procedure, I think in both Houses. However, clause 28 lists the principal elements, in terms of identity documents. If we accepted amendment No. 96 and left out the phrase “or purports to be”, which is a standard phrase in forgery and counterfeiting legislation, individuals could produce forged documents so similar to an existing document as to be thought genuine without that being an offence. In contrast, individuals who used false details to obtain a genuine document would be liable to have committed an offence. In the context of the offences in clause 27, I do not see the necessity for such a distinction. It simply does not make sense. 5.30 pmThe proposals to exclude driving licences other than UK driving licences also make little sense. Foreign nationals may drive in this country legally while holding driving licences issued in their country of origin. As people know, EU nationals are not compelled to change their licence to a British one, although nationals from other countries must do so after one year. It must make sense that, if we accept the premise that a UK driving licence is a bona fide identity document for the purposes of the offences in clause 27, other driving licences with which people are legally allowed to drive in this country are equally valid identity documents. I do not understand why they should be excluded. Column Number: 406 In summary, the list needs to be considered specifically in the context of the offences under clause 27. In that context, the definition of an identity document is rightly narrow. By the by, some wider documents that go beyond identity are still covered by the Forgery and Counterfeiting Act 1981. To return to the point made by the hon. Member for Lancaster and Wyre, having someone else’s bank statement with intent to defraud will be an offence under the Fraud Bill, which is being considered in another place. His points do not apply specifically in the context of the definition of identity documents, but they are well made. They are being dealt with elsewhere. Mr. Wallace: I know that the details of what supporting documents will be used to make up an application for an ID card will be confirmed by secondary legislation. I ask the Minister to ensure that, when that legislation is decided by the Home Office, it makes sure that those supporting documents are protected by clause 28. When he reviews the list of supporting documents, he should remember to take it into account that the documents that could be required for an ID application should be matching, so that there is no gap between the two. That will mean that if someone is stopped on the way to apply for an ID card and they have all the supporting forgeries, they will be guilty under the offence stipulated in clause 28. Mr. McNulty: That is an entirely fair point that I will consider. Anticipating your wrath, Mr. Gale, I will not reopen the debate on designated documents, which we dispatched in respect of clause 4. None the less, in the first instance, it may make sense to ensure that many of the elements duly defined as identity documents in clause 28 bear a close relationship to those that may be designated and utilised for the implementation of the scheme. You know, Mr. Gale, that when we discussed designated documents there was much discussion about driving licences and others documents, in addition to the passport. Whether the list will be an absolute mirror, I do not know. There may be elements that we designate that are not in the list of identity documents, although I cannot think of any. The Secretary of State would have to invoke subsections (4) and (5) to add such items to the list to ensure balance. The only item that came up during our earlier deliberations was the Criminal Records Bureau letter or card check. The hon. Member for Lancaster and Wyre made a fair point about correlation between the identity document in respect of clause 29 and a designated document elsewhere in the scheme. I will take that on board. In that context, this group of amendments is interesting but not terribly helpful, so I ask the hon. and learned Member for Harborough to seek leave to withdraw his amendment. Mr. Garnier: I find the amendments both interesting and helpful, and I am sorry that the Minister does not agree. I note the word “modify” coming into view again in clause 28(4). I know what clause 43 says about modification and its cognate derivation, which is an interesting introduction to statutory language. Unless
If I understood my hon. Friend the Member for Lancaster and Wyre correctly, the sort of incident that he was talking about when he intervened on the Minister might be covered by the criminal law of intent. However, that would depend on how close to the making of a bogus application the individual is caught with the misleading documents. Again, it is not for me to explain the law of England and Wales; it is for the Government to explain their policy and how they hope to deal with this sort of anticipated problem. None the less, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 28 ordered to stand part of the Bill. |
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