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Identity Cards Bill

moved Amendment No. 33:"Page 43, line 9, at end insert—" ““(2)   The particulars which may be recorded in sub-paragraph (1)(a), (b) and (c)— (a)   shall not be so recorded where the individual has consented to the provision of the information, unless the individual further consents to the recording of such particulars; (b)   shall be so recorded where the individual has not consented to the provision of the information”” The noble Lord said: My Lords, moving this amendment at this time of night will not be easy. This part of the Bill has, I suspect, been somewhat orphaned, because we all agree that paragraph 9 of Schedule 1 is particularly important because, as it stands, it allows collection of what one might call a second set of information with regard to every use that is made of an identity card. As the Bill stands, any of us will be able to give consent under Clause 14 for our identity cards to be used for verification purposes that will give the verifying authority or commercial entity the right to look at everything on our entry in the register, except the records referred to in Schedule 1(9). That information is available, as I understand it, only under Clause 20(4), whereby, under Section 17 of the Anti-terrorism, Crime and Security Act 2001, one can call upon certain information,"““for purposes connected with the prevention or detection of serious crime””." I am the first to accept that the definition of ““serious”” is a high hurdle. We were talking earlier about the right level of seriousness of offence to trigger the provisions of the Bill. ““Serious crime”” as defined in the Bill is indeed serious crime. None the less, access to paragraph 9 information is available to those who satisfy the Clause 20 test without the consent of the person whose information has been recorded under paragraph 9. We are dealing with what is commonly called the ““audit trail””, and my amendment—and I am grateful for the support of the noble Baroness, Lady Anelay of St Johns, the noble Earl, Lord Erroll, and my noble friend Lord Thomas of Gresford—seeks to turn around the present provisions of the Bill in two regards. First, it says that one must give two consents, if the audit trail of the information recorded on one’s register is to be captured. The first consent is the use of the card for verification purposes. We have no problem with Clause 14 as it stands; the problem is that we think there should be a second consent for the capture of what you might call the audit trail information. If I use my card at a hotel it will be used to verify where the hotel is and, under paragraph 9, other information beside, to do with each and every use of my card. As has been specifically warned against by the Joint Committee on Human Rights, the information that can be stored under the provision, and the audit trail which will be established by it will, as the committee’s report put it,"““include a record of the occasions on which his or her entry on the Register has been accessed by others . . . for example, in the use of public services, or by prospective employers, or as part of criminal investigations (regardless of whether these result in prosecutions or convictions). Thus the information held on the Register may amount to a detailed account of their private life””." That is very much the line taken by the Information Commissioner. I urge those of your Lordships who have not had a chance to do so to look at the report that the Information Commissioner issued in October, which spends a great deal of time and energy pointing specifically to the danger of the audit trail provisions, of which I shall read one part. It says:"““The extent of the information retained as a core part of the National Identity Register is unwarranted and intrusive””." That comes from the report of the Information Commissioner, who is there to protect all our data against unwarranted access. He goes on to say that,"““the system of operation envisaged by the government also raises additional serious concerns. The government proposes that a data trail should be created of when a card is checked against the National Identity Register. This will show who checked it and when. The government has made clear that the system of operation it favours involves checks by service providers back to the National Identity Register thus building up a picture of an individuals’ card use and a detailed picture from this of how they live their lives. Other systems of checks are perfectly feasible such as a local card reader and biometric reader verifying identity, removing the need for central records to be kept and minimising the risks and costs associated with developing a complex IT infrastructure””." The Information Commissioner goes on to raise his own concerns about whether the scheme is compliant with the European convention and the Human Rights Act. I shall not quote what it said, but the Select Committee on the Constitution in its third report also put emphasis on this whole part of the Bill. We need to keep remembering that the onus should be on the state to prove the public need justifying intrusion into our own data and privacy. It is easy to slip into a reverse assumption when one gets embedded in a Bill of this kind and becomes almost establishment-minded. What the amendment seeks to do is, in its first part, relatively simple. It says that there must be two consents if there is to be a data trail captured on our file in the national identity register. The first consent, under Clause 14, will be for use of our card to verify our identity. Fine, no problem; but there must be a second consent which must be given at the time when the card is used—and I am assured by those who know much more about this than I do, including the noble Earl, Lord Erroll, that it is relatively straightforward. On every occasion on which the card is used for identification purposes, there would be a button to be pressed which would consent to the storing of the information as to the circumstances of use of the card—the audit trail information. We say that in order to satisfy the concerns of the committees I have mentioned, the Information Commissioner and indeed our views on all this—and I think I speak for the Conservative Benches as well—we can deal with it by the amendment given here, which would require at least a double consent: one consent for the verification, but a second consent for the capture of the audit trail information. The second part of the amendment, paragraph (b), is almost counter-intuitive: when our information is being accessed by, for example, the security authorities or the police, then they shall record the occasion of accessing our data, because that will not be an occasion to which we have consented. If the Government are inclined to say, ““We can’t have that, because it would blow apart the security operation or police operation, because it would allow us to require under the Data Protection Act the details of the accessing of that information””, the answer is that there are many protections under the Data Protection Act 1998, particularly Sections 28 and 29, the first of which exempts national security information and the second of which exempts from disclosure information that would be prejudicial to the prevention or detection of crime. That is a galloping explanation of an amendment that is not exactly easy, but which we believe is very important. I should pay tribute to Caspar Bowden, who has been one of the greatest servants to this place with regard to data protection matters over the past seven or eight years; one of those members of the public whose pro bono activities inform and enhance the work we do in this House. It was largely due to his promptings that this amendment has come in at this stage. I apologise for it not having come in at the previous stage, but better late than never. This matter cannot be dealt with tonight, and I am pretty certain, unless the Minister in responding to this amendment says alarmingly unexpected things, we probably ought to deal with this again on Third Reading. I will sit down at this juncture. I beg to move.