Identity Cards Bill

moved Amendment No. 117A:"Page 5, line 29, leave out subsection (1)." The noble Baroness said: Amendment No. 117A stands in the name of my noble friend Lord Peyton of Yeovil who, before he unavoidably had to leave the House earlier this evening, asked if I would move this amendment on his behalf since it leads a group of amendments which stand in my name. I will speak to my own Amendment No. 118 and Clauses 6 and 7 stand part and Amendments Nos. 133, 135 and 136. In my defence, I make no apology for taking considerable time in introducing this group of amendments. It is the only occasion on which I will be speaking at any length in Committee. This group of amendments is crucial to our debates on the Bill. It is unfortunate that it comes up at this stage of the evening, but no doubt that is the fate of many an important amendment. The question is whether it is right to allow the transition from the so-called voluntary system of ID cards into an all-out, compulsory scheme to be made by way of delegated legislation, or whether it should be done by primary legislation. We say that it should be done by primary legislation. It is a matter of public importance, it is a skeleton Bill, and we need to be able to respond effectively to the impact of the so-called voluntary period of registration on the whole process. The Government want to slip into full compulsion by way of order, albeit by the new and untried process of the super-affirmative statutory instrument. We say that process may be fundamentally flawed for such an important transition to full compulsion. My amendments ask the Government to justify the super-affirmative process itself and ask questions about how it would operate if the Chamber ultimately decided that it would be right to go down that route instead of insisting on primary legislation. In the memorandum submitted to the Delegated Powers and Regulatory Reform Committee by the Home Office, at paragraph 34, the Minister says:"““The department’s view is that although the principle of compulsory registration is a very significant one, that principle will be debated and decided during the passage of the bill. Once the principle of compulsion is accepted, the phasing of implementation is a suitable matter for subordinate legislation and the super-affirmative procedure set out in clause 7 provides an appropriate level of parliamentary scrutiny””." We submit that the Government have not yet in Committee proved the case for all-out compulsion based on the provisions of this Bill. This is merely an enabling Bill, which leaves significant questions unanswered. We shall of course continue to listen to the Government in Committee—and I made it clear at the beginning that I would not vote on clause stand part debates, because I take very seriously our duty to listen on these major issues. The Home Affairs Committee in another place felt that the,"““the move to compulsion is a step of such importance that it should be taken only after the scrutiny afforded by primary legislation: the proposed ‘super-affirmative procedure’ is not adequate.””" That was in the committee’s fourth report at paragraph 248. We agree with the committee in that view. The House of Lords Constitution Committee felt that since,"““these measures reflect a significant change in the constitutional relationship between the State and the individual, we consider that the change to a universal and compulsory scheme should not be brought about by secondary legislation, even by a ‘super-affirmative’ procedure””." That is from paragraph 12 of the committee’s fifth report of Session 2004–05. That conclusion was reiterated in the committee’s third report of Session 2005–06, at paragraph 9, when it said that,"““it would be preferable to separate the two phases in order that the compulsory phase would have to be introduced by primary legislation. This would enable Parliament to ensure that the legislation fully reflected experience gained, especially about safeguards, during the voluntary phase””." Again, we agree with that view. The Delegated Powers and Regulatory Reform Committee stated, at paragraph 19:"““Although the Secretary of State’s proposal is amendable under the super-affirmative procedure, the procedure does not provide the same level of scrutiny or opportunity for debate as a bill. We consider that the super-affirmative procedure is not an appropriate alternative to a bill for potentially controversial measures of great public concern; and this is consistent with our attitude to other super-affirmative powers and their use””." Again, we agree with that view. Then, at paragraph 20, the delegated powers committee goes on to say:"““Any assessment of the appropriateness of this delegation of power is dependent on whether one considers this bill as introducing a voluntary scheme which may gradually be extended towards compulsion, or a bill which provides for a compulsory scheme preceded by a voluntary stage. If the former (i.e. if the House is not at this time willing to endorse the principle of a compulsory scheme for all), then the power in clause 6 is inappropriate and a compulsory scheme should only be introduced by means of a bill. If the latter (which accords with the Minister’s invitation at second reading and with the provision in the bill and policy in the memorandum), then the power in clause 6 is the most appropriate method to commence a compulsory scheme. We have taken the latter view, that this bill legislates in principle for a compulsory scheme of identity registration for all; and that the super-affirmative procedure proposed for its introduction is thus the most stringent available secondary legislative mechanism for its scrutiny””." The Government have latched on to that as a justification for retaining the super-affirmative process. But there is, I would argue, a fundamental flaw in the Government’s assertion that the delegated powers committee report gives them a free pass. The committee’s report endorses the super-affirmative process on the basis that this Bill is one,"““which provides for a compulsory scheme preceded by a voluntary stage””." We disagree with that conclusion. Our debates so far have alluded to the fact that Clause 5 in particular makes it clear that the initial phase is compulsory and not voluntary. If one applies for a document that is designated, then one must—not may, must—also apply for registration in the national identity register and thereby qualify for the identity card even if one does not wish it. So the initial phase, we say, is one of effective compulsion for up to 85 per cent of the population. We therefore say that the provisions of the Bill do not fit neatly into the categories described in the Delegated Powers and Regulatory Reform Committee’s report. We maintain that any change from the initial period to that of all-out compulsion must be by way of primary legislation. We recognise that the super-affirmative proposal is both novel and interesting, but we do not believe that it will be the solution to the real question. The question is: would the process ensure that the legislation fully reflected the views of both Houses about the experience gained, especially about safeguards during the voluntary phase? At Second Reading I referred to my concerns about the super-affirmative process and whether it would allow this House full power of amendment and rejection. The Minister has sought to reassure us that we will be able to force amendments or deletions to the original report. The Minister has occasionally repeated that we will be able to force changes to be made and then that we will be able to reject the statutory instrument. But is that really the case? Surely the cat had been let out of the bag in another place in July when, in response to a question from Mr Carmichael—"““What happens if one House modifies and the other does not? What procedure is followed thereafter?””—" the Minister in charge of the Bill for the Government, Mr Burnham, said:"““I guess that the procedure would be the same as it is now; the elected House, with primacy, would prevail. I would not want there to be any procedure other than that. I will get back to the hon. Gentleman with regard to the detail of how the process would work on the Floor of the House, but from my point of view it is clear that the elected House will ultimately determine whether and how the order goes forward””.—[Official Report, Commons Standing Committee D, 12/7/05; col. 216.]" So will the Minister tell the Committee whether Mr Burnham was wrong in what he told another place? If so, will he apologise to them for unintentionally misleading them during a crucial debate? Either this is an order-making process and the Commons cannot force it through without the Lords, as there is no Parliament Act provision, or the Government are planning on the basis that before we reach the date of compulsion they will have legislated to restrict the powers of this House in respect of secondary legislation. If that were to be the context in which the super-affirmative orders were to be considered, then it would be even more of an inadequate sop than it appears at first sight. Will the Government today give a clear commitment that this House will have every right to reject any secondary legislation that will mark the transition from the initial period of compulsion under Clause 5 to the final period of compulsion under Clause 6 if they retain stewardship of the government of the country? In any case, the Committee’s discussion of the Bill has shown that the information about it is so lacking, the costings so obscure, the details as yet so far from being determined, that even if the scheme were to go ahead on a purely voluntary basis, it is inevitable that substantial change will be needed. We would argue that that could properly be done only by the mechanism of primary legislation. Parliament is certainly owed nothing less than that. I beg to move.