Identity Cards Bill

It is already crystal clear. The whole way in which the commissioner will work is going to incorporate that. The amendment of the noble Baroness, Lady Anelay of St Johns, takes out one part of it but, if you look at the structure which we have in the Bill, all of those issues are ones on which the commissioner can report and have scrutiny. This is therefore an unnecessary complication, but we absolutely agree with noble Lords when they say this is an important issue. Amendment No. 223 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. It would be wrong to give the commissioner a formal role in the investigation of complaints. Complaints handling will be a routine function that the new agency will need to fulfil. The United Kingdom Passport Service—which will form the basis of the new agency to be established to issue identity cards and passports—already has a tried and tested system for dealing with complaints, whether it is about the level of service, including delays, or the outcome of an application. It also has a published set of service standards. There is an existing four-stage complaints procedure which includes a review by the local customer service manager, followed, if not satisfied, by a review by the headquarters’ customer service department. If not satisfied, a complainant can write through their MP to the Passport Service chief executive or a Home Office Minister and then, as I have already said, to the Parliamentary Commissioner for Administration—the ombudsman. These avenues will all remain open to the public once identity cards are introduced. In addition, there will be nothing to stop members of the public alerting the commissioner to complaints they have had about the agency’s conduct. However, where they have not already done so, we would expect the commissioner to direct many of these complaints back to the agency’s own internal complaints handling process. Having said that, we would expect the commissioner to review the way the agency manages complaints and, in appropriate cases, he or she may decide to make further inquiries into any specific complaint. What is not proposed is that the commissioner should be responsible for dealing with every single complaint, however trivial. The commissioner should scrutinise the agency’s own complaints handling processes and report on these as he or she sees fit, including in an annual report. Staff of the agency will be under a duty to co-operate with the commissioner and provide information to him or her 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 of course 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. 223 also seeks to give the commissioner a role in data correction in individual cases. Arrangements for ensuring the accuracy of the data on the register will be one of the issues of concern to the commissioner in carrying out his functions under Clause 24(2)(a). However, we do not think it would be appropriate to give him a duty to investigate individual cases. As I hope I have made clear, the operation of the register will need to comply with the Data Protection Act. The duties of the Secretary of State as a data controller—including a duty to ensure accuracy—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. All the complementary things that have been said about the information commissioner in discharging that role will remain in situ. Individuals will be able to establish details of their own entry on the register. We hope to make this possible by means of a secure online check. In any event, they will be able to make a 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. But ultimately, an unreasonable failure to rectify information can be the subject of a formal application for rectification made to the court under Section 14 of the Data Protection Act. Amendment No. 224 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””. Amendment No. 225 would add to the commissioner’s remit some of the functions that we have excluded from his remit; namely, the exercise of powers which are exercisable by statutory instrument—or by statutory rule in Northern Ireland—appeals against civil penalties, and the operation of the Act to subordinate legislation. Amendment No. 227, read in conjunction with Amendment No. 224, would, first, allow the commissioner, when undertaking a review of provisions of information to the intelligence agencies to liaise with the intelligence services commissioner with a view to referring responsibility for that review to him; and, secondly, allow him to liaise with the information commissioner in relation to the processing of personal data. It is important that the powers in the Bill are properly scrutinised, but I also think it is important that we use the resources available to us effectively. The reason for excluding the matters listed in subsection (3)(a) to (c) from the role of the commissioner is that those parts of the Bill are already subject to independent scrutiny either by Parliament or by the judiciary. Taking each in turn, they are: the exercise of the powers by means of statutory instrument—or statutory rule in Northern Ireland—which would be subject to parliamentary oversight; appeals against civil penalties which will be a matter for the civil courts; and criminal offences which are a matter for the criminal courts. Given that the matters which are excluded from the remit of the commissioner are all subject to adequate and indeed more appropriate scrutiny by others, we consider Amendment No. 225 to be unnecessary. On Amendment No. 226, we say that there is no need to exclude the provision of information to SOCA from the remit of the commissioner. The security services in subsection (3)(d) are overseen by the Intelligence Services Commissioner, but this is not the case with SOCA. If Amendment No. 226 were accepted, there would be no independent oversight of the provision of information from the register to SOCA. I am sure that that is not what the noble Baroness intended—I see her nodding that that is so. We do not believe that it would be sensible to remove a safeguard from the Bill and therefore it should stay in situ. The effect of Amendment No. 224 would be that the commissioner would have oversight in relation to an excluded matter where a particular case raises a concern of substantial public interest. The amendment seeks essentially to achieve something which is already provided for in the clause. Taking paragraph (a) of the amendment, for example, while it is not for the commissioner to scrutinise the actual exercise of delegated powers—that is Parliament’s role—it is clear from the text of Clause 24(2)(a) that it is his role to review the Secretary of State’s functions,"““under this act or the subordinate legislation made under it””." Therefore,"““any particular case affected by these powers or rules, which raises a concern of substantial public interest””—" to quote the text of the amendment—would already fall within the jurisdiction of the commissioner. Paragraph (b) of the amendment is, in so far as it refers to appeals against civil penalties, no different from Clause 24(3)(b). Appeals are matters for the civil courts and it would not therefore be appropriate for the commissioner to have an overlapping jurisdiction. I do not think that is what the noble Baroness would want. However, we believe that it is right that the commissioner should have 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 any oversight. Therefore the aspect of paragraph (b) of the amendment which seeks to remove that part of the commissioner’s jurisdiction is inappropriate. Paragraph (c) of the amendment would enable the commissioner to examine the prosecution of a person for a criminal offence under the Bill if it raised a matter of substantial public interest. We do not think that that is appropriate. Prosecutions are a matter for the police, the Crown Prosecution Service and the courts. In very exceptional circumstances, after the event, a prosecution will be the subject of an inquiry. It would be very unusual to empower a commissioner to review prosecutions that he considered to raise a matter of substantial public interest. Paragraphs (d) and (e) would give the commissioner jurisdiction to review the provision of information to the security services, once again subject to a substantial public interest test. Again, this would result in an overlapping of responsibility between the commissioner and the Intelligence Services Commissioner. Such an overlap can result only in confusion, and it is our view that sensitive issues such as this are better dealt with by those who deal with them on a daily basis. The first part of Amendment No. 227 is consequential on paragraphs (d) and (e) to which I have just referred. I shall not deal with it specifically unless the noble Baroness indicates that she is minded for me to do so. I shall now turn to Amendment No. 231 and those amendments that are primarily concerned with the reports of the commissioner. While I appreciate the arguments put forward in proposing these amendments, the Government consider that it necessary for the reports to be addressed to the Secretary of State with the potential for parts of the report to be excluded from the report laid before Parliament. This is primarily because of the function of the scheme commissioner in overseeing the provision of information from the register without consent. There are precedents for this in the oversight of police activities which fall to the Office of the Surveillance Commissioner. The Chief Surveillance Commissioner reports annually to the Prime Minister who has similar discretion to that set out in this clause. Similarly, when Her Majesty’s Inspector of Constabulary reports to the Secretary of State, the Secretary of State has power to exclude from publication any part of a report on the grounds that not to do so would be against the interests of national security or might jeopardise the safety of any person. These 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. There are certain circumstances, given the sensitivity of some of the information relating to provision of information without consent, where it would be prejudicial to these matters if a report were laid in Parliament which could then be publicly read. For example, the commissioner would have responsibility for oversight of the provision of information without consent to the Serious and Organised Crime Agency. I have already explained why we think the commissioner needs a role there, but I am sure noble Lords will understand the sensitivity of that role and the importance of getting it right. To make public for what purposes that organisation has 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 the use of the register by such bodies. It is fairly easy to see how information could be included in such a report that would be prejudicial to national security or the prevention or detection of crime, but another example of this is where information is provided to the police and to the Inland Revenue and Customs and Excise for their ongoing fraud investigations. We do not think it is appropriate 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 this power to exempt information as necessary. There are safeguards to the use of this power, however. 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 to be laid in Parliament and a confidential annex not to be published. If such a practice were adopted by the commissioner, it would in effect allow the commissioner to determine which parts of his report should be made public, although this would be done in consultation with the Secretary of State. It would be a practical way of dealing with this sensitive issue. I realise that the powers of the newly created national identity scheme commissioner are of great interest, but it is important that we ensure that we provide the right balance of powers. We think that the Bill has found the right balance. We do not consider that it would be right to give the commissioner responsibility for investigating complaints, and we think that there is a very good case for the commissioner to report to the Home Secretary, as the Home Secretary’s key adviser on how the identity cards scheme is being operated, rather than to report directly to Parliament. For the reasons I have set out as regards this large group of amendments, I hope noble Lords will see that: first, we agree with them on the need for scrutiny; secondly, we have provided for appropriate high-level scrutiny; and, thirdly, these amendments are wholly unnecessary.