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Identity Cards Bill

moved Amendment No. 76:"After Clause 23, insert the following new clause—" ““FUNCTIONS OF THE SECRETARY OF STATE IN RESPECT OF DISCLOSURE OF INFORMATION (1)   Notwithstanding the provisions of sections 11 and 19 to 23, the Secretary of State has the following specific functions in respect of the disclosure of information— (a)   to draw up and disseminate to the persons and bodies to whom sections 11 and 19 to 23 apply, guidance as to the disclosure of information between and amongst themselves in a proportionate and necessary way; (b)   to draw up and disseminate to the persons and bodies to whom sections 11 and 19 to 23 apply, guidance as to the circumstances in which it is appropriate for those persons and bodies to disclose information between and amongst themselves in a proportionate and necessary way; (c)   to maintain under review the guidance set out in paragraphs (a) and (b). (2)   In drawing up the guidance set out in subsection (1)(a) and (b), and in reviewing such guidance under subsection (1)(c), the Secretary of State shall consult— (a)   the National Identity Scheme Commissioner; (b)   the Information Commissioner; (c)   such other interested persons and bodies as the National Identity Scheme Commissioner sees fit. (3)   The guidance under subsection (1)(a) and (b) shall in particular make provision as to— (a)   the nature of the information that must or may be disclosed; (b)   procedures designed to ensure the proportionality and necessity of the process of information disclosure; (c)   procedures designed to ensure the accuracy and security of information disclosed; (d)   procedures designed to ensure, where appropriate, the co-ordination of the disclosure of information between and amongst relevant agencies and persons in a proportionate and necessary way; (e)   procedures designed to guarantee, as appropriate, the rights of data subjects in respect of any information about them that may be disclosed; (f)   procedures designed to govern the period for which it is appropriate that information should be disclosed and to ensure appropriate deletion of any information disclosed in compliance with the data protection principles. (4)   This section applies to the persons and bodies identified in sections 11 and 19 to 23 and, as appropriate, any agencies, companies or individuals who may be contracted to work for them or to supply goods and services to them. (5)   The Secretary of State may by regulations subject to affirmative resolution in each House of Parliament proscribe and penalise contravention of any guidance under this section as to collection, sharing, use, holding and disclosure of information.”” The noble Earl said: My Lords, as your Lordships will be aware, we debated this somewhat late in the day in Committee. I hope, therefore, that I may be forgiven for returning to the issue today, although happily I need not weary the House with a detailed explanation of its purpose, which is straightforward: namely, to propose that the Secretary of State draw up statutory guidelines in respect of the information disclosure provisions of the Bill, with the intention that these be enforceable in law. I have been consistent in my pessimism about the Government accepting the amendment, on the basis—and here I echo an earlier comment of the noble Lord, Lord Phillips—that it will be argued it is unnecessary because the Human Rights Act and the Data Protection Act will apply to this legislation in any event. The Minister made that case in Committee. Indeed, when I sought to amend the Children Act 2004 in a similar way, my efforts were rebuffed for the same reason, although it is perhaps worth noting that at that time the noble Baroness, Lady Ashton, replying for the Government, made the point:"““We are clear that comprehensive statutory guidance is needed””.—[Official Report, 15/7/04; col. 1431.]" That was buttressed in the 19th report of the Joint Committee on Human Rights, which observed:"““We welcome the Government’s acceptance of the need for comprehensive statutory guidance on information sharing, in response to an amendment proposed by””" myself, and supported by the noble Lord, Lord Campbell of Alloway. It may be somewhat presumptuous of me, but I infer from that that at least some elements of the legislative process have sympathy with my purpose here. That aside, revelations in respect of a number of related matters over the past few weeks have reinforced my conviction that some form of additional protection for the public in this area is essential. First, your Lordships will of course have noted the recent disclosure that some 24,000 young people aged between 10 and 18 are having their DNA profiles routinely stored, despite the fact that they have never been charged or cautioned for an offence. That is a matter that the noble Lord, Lord Phillips, raised in a Starred Question last week. The structure of the Bill, as I have repeatedly argued, allows a great deal of cross-pollination between the national identity register and other government databases. It is entirely possible that the ID card scheme could in the future be used to cross-reference DNA data. Evidently, that flies in the face of the assertions that the Minister made on the point throughout our scrutiny of the Bill. We all understand that there are legitimate, perhaps even virtuous, arguments in favour of the utility of databases storing DNA profiles. However, it is essential that their establishment should not happen, as it were, by stealth, but should be subject to open and transparent parliamentary debate. Certainly this matter would seem to argue in favour of the new clause, the more so given that there have been indications that the Home Office may be in the process of reviewing its retention and deletion policy in this area. Secondly, your Lordships will also have noted the front-page story in a recent copy of the Times revealing that three chief constables have won a landmark appeal to the Information Tribunal against the Information Commissioner. As a result, from April this year, records of all criminal convictions and cautions, however minor, will remain on file pretty much indefinitely. Again, we can all accept and recognise the efficacy of using such data within databases for the prevention and detection of criminal and even terrorist activity. Nevertheless, as a non-lawyer, I cannot square the circle between retaining data—albeit ““available to police eyes only””—for 100 or so years and the fifth data protection principle, which states:"““personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes””." There is also the announcement from the Home Office Minister, Andy Burnham, that ID cards will,"““incorporate a ‘contactless’ or ‘proximity’ chip””," reliant on RFID—radio frequency identification. The fact is that this technology can be and is used to track the location and movement of items in which it is embedded. ID cards would effectively come with a built-in facility permitting knowledge of the whereabouts of the holder for every second of every day. That is an especially pertinent issue regarding the security of the scheme. All those developments persuade me that, however persuasive the Minister may be in arguing the case, the comfort and security afforded by the Data Protection Act are far from adequate. In Committee, the Minister suggested that an argument against the new clause is that,"““what is lawful for [recipients of information] to do with it will depend on each recipient’s own common law and statutory powers””.—[Official Report, 14/12/05; col. 1355.]" In other words, it will be difficult to codify the Bill’s disclosure of information provisions because they stretch across such a wide variety of agencies. To my way of thinking, that makes it all the more necessary to do so. It is precisely because current arrangements for disclosure are such a mishmash that guidelines, statutorily based and enforceable in law, are unnecessary. Such a codification should reflect the different approaches adopted by different agencies, thereby creating greater transparency of the regime. Merely because such a task might be difficult should not in any way militate against it being done. In fact, the new clause buttresses a central recommendation of Sir Michael Bichard’s inquiry into the Soham murders. Recommendation 8 of the report states that, in respect of police IT systems:"““A Code of Practice should be produced””," which, in the words of Recommendation 9:"““must clearly set out the key principles of good information management (capture, review, retention, deletion and sharing), having regard to policing purposes, the rights of the individual and the law””." The Home Office’s progress report of last month identifies that the full set of guidance recommended by Sir Michael Bichard was available as of October last year. To that extent, the new clause—in so far as it applies to Clauses 19 and 20—is entirely consistent with the policy imperatives being pursued by the Home Office. Indeed, while it is idle to speculate, it is conceivable that much of the recent controversy about List 99 and the sex offender register might have been avoided had the new clause, or something like it, already been properly implemented. Dare I say it, but, viewed from this perspective, the Government should be minded to approach the amendment with a healthy measure of sympathy. I add a few thoughts about this, in part reflecting some of the observations of the noble Lord, Lord Phillips of Sudbury, last week. The Home Office has announced, almost with pride, that 7 per cent of the UK population will have their DNA profiles stored in two years’ time, thereby reinforcing the UK’s position as the world leader in the practice. For example, this compares with the EU average of 1.13 per cent, and 0.5 per cent in the United States. Some 20 per cent of the total CCTV cameras deployed in the world are to be found in the UK. Under the current Administration, the UK population has become subject to greater level of state surveillance than almost anywhere else in the world. This necessarily begs the question of whether the rights and protections of our citizens in this area have kept pace with what some might be tempted to call the Government’s infatuation with snooping. There are legitimate reasons for supposing that the powers of the Information Commissioner and associated legislation such as the Data Protection Act 1998 are proving ever more inadequate, as perhaps exemplified by the decision of the Information Tribunal to which I referred earlier. By the same token, it is perhaps worth reminding ourselves that the Information Commissioner has had just cause in the past to bemoan an absence of appropriate enforcement powers. The new clause is therefore intended to offer some redress in this area. In conclusion, I repeat my assertion that the new clause or something like it is necessary to act as belt and braces to the Human Rights Act 1998 and the Data Protection Act 1998, and to give both the national identity scheme and information commissioners adequately sharp teeth. As my noble friend Lord Crickhowell pointed out in Committee, it would go a long way towards mitigating many of the anxieties that many of us have about the Bill. I beg to move.