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Lord Phillips of Sudbury: My Lords, I am grateful to the Minister. I am also grateful for that Exocet from the noble and learned Lord, Lord Ackner, which was more than a neat point. I thought that it went to the heart of the debate—and, indeed, the Minister hung his hat on mere perception. Perception is important, and it is important here. The Minister talked about the Intelligence Services Commissioner and said that he is appointed by the Prime Minister. I might accept the Prime Minister as an alternative to the Secretary of State. What I am worried about is that the commissioner will have more to do with the Secretary of State and the overseeing of the Secretary of State's stewardship of the whole scheme than anyone else. Therefore, this is an issue on which it is worth testing the opinion of the House.
4.51 pm
On Question, Whether the said amendment (No. 76A) shall be agreed to?
Their Lordships divided: Contents, 155; Not-Contents, 138.
Ackner, L.
Addington, L.
Alliance, L.
Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Avebury, L.
Barker, B.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Chidgey, L.
Clement-Jones, L.
Cobbold, L.
Cope of Berkeley, L.
Craigavon, V.
Crickhowell, L. [Teller]
Darcy de Knayth, B.
De Mauley, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Erroll, E.
Falkner of Margravine, B.
Fearn, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B. [Teller]
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Inge, L.
Inglewood, L.
Jellicoe, E.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kennedy of The Shaws, B.
Kingsland, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lindsay, E.
Listowel, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
Onslow, E.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Quirk, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tebbit, L.
Tenby, V.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Tugendhat, L.
Tyler, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Watson of Richmond, L.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Cameron of Dillington, L.
Campbell-Savours, L.
Carter of Coles, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Yardley, B.
Murphy, B.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
30 Jan 2006 : Column 42
5.02 pm
Baroness Scotland of Asthal moved Amendment No. 77:
( ) Where the Commissioner reviews any arrangements in accordance with subsection (2), his review must include, in particular, a review of the extent to which the arrangements make appropriate provision—
(b) for dealing with complaints made to the Secretary of State or a designated documents authority about the carrying out of the functions mentioned in that subsection."
The noble Baroness said: My Lords, in moving Amendment No. 77, I shall speak also to Amendments Nos. 78, 79, 80, 81, 82, 83 and 84. Amendment No. 77 clarifies that the National Identity Scheme Commissioner's jurisdiction includes keeping under review the arrangements for securing the confidentiality and integrity of information on the register as well as the arrangements for handling complaints. I listened very carefully to the concerns
30 Jan 2006 : Column 43
raised by noble Lords in Committee and I hope that this amendment goes some way towards addressing those concerns.
Noble Lords were particularly concerned about complaints handling. As the amendment clarifies, the commissioner will have oversight of the complaints handling procedures and, no doubt, will include in his report any concerns that he or she might have about the way in which the agency is handling any complaints that it receives.
As I said in Committee, nothing in the Bill would prevent the commissioner taking an interest in or making further inquiries about a specific complaint. What I do not think would be appropriate, however, is to give the commissioner a formal role in the investigation of complaints in general. Complaints handling will be a routine function that the new agency will need to fulfil, and I do not think it sensible for the commissioner to be responsible for dealing with every single complaint, however trivial. It would substantially change the nature of his role, which is, in essence, one of keeping the scheme, as a whole, under review.
Amendment No. 77 will also require the commissioner to keep under review the arrangements for securing the confidentiality and integrity of information recorded in the register. As I have made clear, I was most attentive to the concerns raised by noble Lords in Committee, in particular those about the security and integrity of the information held on the register. It is clear from this amendment that the commissioner must have regard to that and will report on it.
However, we do not accept that the commissioner should have a formal role in requests for data correction from individuals. As I have made clear, the operation of the register will need to comply with the Data Protection Act 1998. The duties of the Secretary of State as a data controller, the rights of the individual as a data subject and the powers of the Information Commissioner will all apply to the national identity register as they do to other databases. Where a person feels his data are being unfairly processed—for example, because they are inaccurate—he could approach the Information Commissioner, who has a power to impose enforcement notices on data controllers. There is also a right under the Data Protection Act 1998 to apply to the courts for rectification.
Amendments Nos. 78 to 82 seek to modify government Amendment No. 77. These are essentially unnecessary drafting amendments; they would have no substantive effect on the remit of the commissioner.
We discussed at length in Committee the question of whether "arrangements for using", under Clause 24(2)(c), would in this context include "uses". As I said then—and I stand by that view—it would. Therefore, Amendment No. 78, which adds the word "uses" into the government amendment clarifying the scope of Clause 24(2), is particularly inappropriate, as
30 Jan 2006 : Column 44
the word "uses"—as opposed to "arrangements for using"—does not appear in the subsection which is being clarified.
Amendment No. 83 seeks to add to the powers of the National Identity Scheme Commissioner by allocating him a formal role in the investigation of individual complaints and in dealing with data corrections. I outlined in our discussion on Amendment No. 77 the reasons why that would not be appropriate. I therefore do not intend to repeat those comments now. Suffice it to say that the commissioner should scrutinise the agency's own complaints handling procedures and report on those as he or she sees fit. Staff of the agency will be under a duty to co-operate with the commissioner and provide information to him by virtue of Clause 24(4). If the commissioner is not satisfied with the handling of complaints in general, or a complaint in particular, he can raise it with the Secretary of State and refer to it in his reports under Clause 25, all of which will be laid before Parliament.
Amendment No. 83 also seeks to give the commissioner a role in data correction in individual cases. I have already outlined why we believe that this amendment is inappropriate and I do not intend to say more on that. Individuals will be able to check the details of their own entry on the register. We hope to make that possible by means of a secure online check. I know that noble Lords were concerned about how to ensure that the facility operates easily, smoothly and sensibly. We think that this proposal will be helpful. In any event, they will be able to make a written subject access request under the Data Protection Act.
If individuals are concerned that there is an error on the register, they can request that the information is removed or corrected. In the normal course of events, the problem should be solved without the need for reliance on formal legal rights. Ultimately, however, as I indicated, an unreasonable failure to rectify information can be the subject of a formal application for rectification made to the courts under Section 14 of the Data Protection Act.
Amendment No. 84 seeks to add to the remit of the National Identity Scheme Commissioner both general policy matters and areas that are currently excluded from his remit if any of those areas raises a matter of substantial public interest. The effect would be that the commissioner would have oversight of an excluded matter where a particular case raised a concern of substantial public interest.
In Committee, I outlined why the matters set out in Clause 24(3) have been excluded from the jurisdiction of the commissioner: because they fall under the jurisdiction of other bodies, be it Parliament, the courts or a different statutory commissioner. I also gave a detailed account of why the matters contained within paragraphs (a) to (d) of Amendment No. 84 are not issues with which the commissioner should become involved. I do not propose to repeat those arguments as I am sure that all noble Lords opposite have had the opportunity to read them in detail; it was on 19 December 2005, at col. 1522.
30 Jan 2006 : Column 45
Amendment No. 84 would, additionally, give the commissioner oversight of "general policy matters". Our view is that it is unnecessary to include that in the Bill. The Secretary of State will be establishing the policy for the agency and the agency will implement that policy. The commissioner will be keeping under review the arrangements made by the agency, by designated documents authorities or those to whom information is provided. Nothing in the Bill prevents the commissioner from commenting on any policy matter in one of his reports. Indeed, we would expect him to do so. However, we are of the view that it is inappropriate to list in the Bill all matters which the commissioner may choose to look at, or comment on in his reports. To do that would make the legislation unnecessarily lengthy, and in our view that should be avoided.
I hope that I have been able to reassure noble Lords that the commissioner's remit is sufficiently wide to ensure that the scheme has the appropriate level of oversight and I would invite the noble Lords not to press their amendments. I absolutely understand noble Lords' concerns to ensure that the commissioner has comprehensive opportunities to make comment. We believe that the way in which we have drawn Amendment No.77 enables the commissioner to do everything which is proper. I therefore beg to move while inviting the noble Lords not to do so.
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