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Lords Chamber

Volume 721: debated on Monday 18 October 2010

House of Lords

Monday, 18 October 2010.

Prayers—read by the Lord Bishop of Blackburn.

Introduction: Lord Williams of Baglan

Michael Charles Williams, Esquire, having been created Baron Williams of Baglan, of Neath Port Talbot in Glamorgan, was introduced and took the oath, supported by Lord Dubs and Lord Malloch-Brown, and signed an undertaking to abide by the Code of Conduct.

Education: Marshall Scholarships


Asked By

To ask Her Majesty’s Government what financial commitment they will make to support the Marshall scholarships scheme.

We strongly support the aims of the Marshall scholarships programme and we kept our funding at £2.2 million this year. We certainly intend to maintain the scholarships programme. We are discussing with the Marshall Aid Commemoration Commission what level of financial support would sustain the programme. The commission is planning around a number of scenarios to prepare for candidate selection interviews in November. I cannot confirm the figure now, as the Foreign and Commonwealth Office has not yet decided its own allocations between programmes, but we will do so as soon as possible after the 20 October announcement of the comprehensive spending review outcome.

My Lords, I thank the Minister for that Answer as far as it goes, which is not terribly far. Will he confirm that the HMG-funded scholarships under the Marshall scheme have been in steady decline in the past few years and are set to decline further? Does he not believe that that is an odd way for the British state to express its gratitude for a major act of generosity by the United States, which was, of course, the purpose for which the scheme was set up in the first place?

I wonder whether the noble Lord is right to take quite such a gloomy view. It is perfectly true that the numbers are down because the sums available have not covered so many scholars. However, there is no reason why in the longer term, as we cease to have to cut our cloth as sharply and as the nation becomes more prosperous, we should not return to a more expansive programme. On top of that, it is worth remembering that, outside such scholarships, there are many other forms of support. I am advised that, in British universities generally, the numbers of postgraduate Commonwealth and US students have been rising rapidly in recent years. That is one thing that the previous Government got right.

My Lords, as I was bicycling very recently along Trumpington, I thought about today’s Question. Does the Marshall scholarship bear any relation to the Commonwealth Fund of New York or the Harkness fellowship? Together, they are, I believe, well endowed. Would some sort of relationship among the three be of benefit to all three?

I am very glad indeed, as I am sure that we all are, to hear about the vigorous cycling activities of my noble friend. As to her question, those two categories are not ones with which our Marshall scholarships, Chevening scholarships, our own Commonwealth scholarships or other programmes are related. We wish those schemes well and they are very good programmes, but they are not directly related to our programmes, which we run from our various departments here.

My Lords, at a time when the so-called special relationship is quite often under threat, is the Minister aware of the important fact that there are 10 Marshall scholars in President Obama's Administration? Given what we know of the generosity of previous scholars—for example, their personal donations to British universities far outweigh the scholarship’s £2 million cost to the FCO—it is very important that the scheme should be maintained.

The noble Baroness is right to say that we must maintain the scheme. Obviously, we have to face up to the fact that we have to make economies everywhere, but she is right that we must maintain it. I had heard that the number of Marshall scholars in the Obama Cabinet was five, not 10, but perhaps there are some others. Certainly, one of the wisest of the Supreme Court judges is a very distinguished ex-Marshall scholar. The noble Baroness is quite right that we must maintain the scheme, but we have to face economic realities as well—everyone knows that.

My Lords, does my noble friend accept that it is not just a question of the special relationship and diplomacy, very important as those things are, or of looking with gratitude to the past? Because those scholarships can be taken at any university in the United Kingdom and in a range of subjects, they are also an investment in the scientific co-operation between this country and our colleagues in the United States, which is one of the primary engines for future development.

I am sure that that is right, and I would extend the same thought to the Commonwealth scholarships and the vast spread of people going through our universities who go out into the new markets of the world that will dominate our prosperity in future. We want those people to look back to this country to order their equipment, to provide their services and to develop their professions and we want them to realise that we can continue to be the workshop and service counter of the world.

My Lords, does the Minister recall that, in a speech at the New York Stock Exchange on 22 September 2010, the Foreign Secretary said that,

“it is this extraordinary level of personal connection that makes the relationship between our two countries irreplaceable”?

Often, those relationships that are made as students, very early in life, are so important. Does the Minister agree that the Marshalls have played a strong role in that extraordinary level of personal connection? Does he not think that, were the scholarships to be reduced any further, that personal connection would suffer, maybe not next year but in 10 years’ or 15 years’ time?

One has to look at all the relationships as a whole. Certainly, I do not dispute for a moment that the Marshall scholarships are an important part, nor can I reject the point made by the noble Lord, Lord Hannay, that their numbers have been falling. However, many other things have been increasing. As I mentioned earlier, under the Government of which the noble Baroness was a distinguished member, there was a dramatic increase in the number of US students in the United Kingdom. There are many other programmes, such as Fulbright and Gates, which make a contribution. I have to reveal to your Lordships that I stand here in the knowledge that I was supported by an American scholarship through my time at Cambridge, which may be welcome or not. Such scholarships are a feature of a whole network of relationships with the United States that we treasure greatly because we still regard the United States, through all its difficulties, as the home of liberty.

My Lords, I declare an interest as a trustee of the Cambridge Commonwealth Trust and of the Cambridge Overseas Trust. I seek to reinforce the point already made that the sum that my noble friend the Minister has mentioned is not large—it is a little more than £2 million. One consequence of such scholarships is to encourage the scholars subsequently to make contributions of importance to our universities and to encourage others to do the same. They have a big multiplying effect.

I totally endorse what my noble and learned friend says. They are a variable part of the overall scheme of our relationship for today and for tomorrow. We must work to sustain that.

Railways: North-west


Asked By

To ask Her Majesty’s Government what plans they have to invest in rail services in the north-west.

My Lords, the Government’s priority is deficit reduction. However, current proposals include route electrification between Blackpool North, Manchester, Liverpool and Wigan. We also plan to lengthen trains and platforms where necessary to accommodate patronage growth. North-west stations have been highlighted for improvement through the National Stations Improvement and Access for All programmes. In Manchester, the priority is to extend Metrolink. In addition to work under way, a further £170 million extension plan was announced in July.

My Lords, I thank the noble Earl for that reply. At present, the best rail service between London and Manchester is two hours and seven minutes. By 2014, the journey from London to Paris will be under two hours. It is a longer journey, but it will be very much faster than the service to Manchester. There is a big chain between these two. Although there will eventually be a faster journey between London and Manchester, when will that be? How long do we have to wait for that?

My Lords, the coalition Government are committed to high-speed rail. We hope to have parliamentary approval for the hybrid Bill in 2015 and work will start shortly thereafter.

I am sure the Minister will be aware that Network Rail published its northern route utilisation strategy on 8 October, which contains some very encouraging figures for passenger growth in the north of England. For example, as regards Liverpool and Manchester, it estimates that by 2019 growth will exceed 30 per cent and may rise as high as 45 per cent. Will he give an absolute assurance that the Government will honour the comment that he made about electrification despite the horrors that may be in the Chancellor’s statement this week?

My Lords, we welcome the work carried out by Network Rail in compiling its route utilisation strategy. It provides a valuable input into the work to be undertaken by the Department for Transport to determine the outputs the railway needs to deliver during 2014-19 and beyond. My comments about electrification remain.

My Lords, does the Minister agree that it is disgraceful that, after 13 years of Labour rule, 10 transferred coaches have been sent to the northern franchise, 182 were promised in the rolling stock plan and, that under a Labour Government, an order for 200 multiple unit trains was cancelled? Can he please press on his right honourable friend the Secretary of State the need to pay attention to the great northern cities of this country and actually do something for them?

The noble Lord makes important points. The noble Lord, Lord Faulkner, talked about increased passenger demand in the north-west, and Manchester in particular has some serious problems. However, capacity is constrained by the infrastructure—we need to do something about the northern hub—as well as by the rolling stock.

My Lords, given the areas of multiple deprivation in east Lancashire and the current emphasis on localism, will the Minister consider giving his strong support for plans to re-establish the link between Colne in east Lancashire and Skipton? Will he also consider opening the Todmorden curve to passenger traffic, thus making it possible to improve the links between Burnley and Manchester?

My Lords, the Government support proposals for the Todmorden curve and are providing help and advice to local authorities working with Network Rail and the train operator to develop a proposal that has a business case and can be funded through local and regional sources. On the general point about reopening lines, we would be happy to work with a local authority promoter which sought to establish whether reopening a line was the best way to meet local transport needs. However, I emphasise the need for a good business case.

My Lords, did the Minister notice that the noble Lord, Lord Bradshaw, as a loyal supporter of the coalition, failed to mention the very great investment indeed made by the last Labour Government in the west coast main line, which has raised the performance of the train service to the level it has reached today? Does he also accept that while we welcome his statement today about electrification in the north-west, he knows that the shortage of rolling stock is an acute issue, and that this relates to investment decisions on Thameslink in southern England? The two are related because of surplus rail stock that is destined to go to the north-west. Will he confirm that he will take that on board, because there is not much point in producing an infrastructure if you do not have the rolling stock to roll on it?

The noble Lord made several points, many of which were correct. I want to make it quite clear where we are on electrification. In 2009, it was announced that the following lines in the north-west would be electrified: Manchester to Liverpool via Chat Moss, which we plan to complete by 2013; Liverpool to Wigan North Western by 2014; Manchester to Bolton and Preston by 2016; and Preston to Blackpool North by 2015. That is what we are planning to do.

Apart from the rise in the use of trains, which is welcome, is it at all possible that we might actually have some trains running at the weekend? Most people visiting this country are under the impression that we have become a totally third-world nation at the weekend. By the time we get to the Olympics, I think that people would like some trains in order to get to the stadiums.

My Lords, one of the issues that many of us who are interested in rail transport are particularly concerned about is the business of possessions for weekend engineering works and their overrunning. We pay a lot of attention to this and we look forward to Sir Roy McNulty’s report on value for money and efficiencies in the rail industry, which the Secretary of State is due to receive early next year.

Prisoners: Voting


Asked By

To ask Her Majesty’s Government what action they are taking to comply with the judgment of the European Court of Human Rights on the voting rights of prisoners.

My Lords, I thank the Minister for that reply. I understand that responsibility for the issue has now been passed to the Deputy Prime Minister, who announced that action was being taken. When I last asked this question in June, the Minister told the House that we would receive an answer in October. I gather that has now been deferred until December. I dread to think what would happen in this country if anyone who was made the subject of a court order did nothing about it for six years—the time that has passed since this order was made, and it has been five years since the appeal. Can the Minister assure the House that intentions are being carried out to enable those prisoners who will be allowed the vote to vote in the elections next May?

My Lords, that is a trick question because it assumes that a decision has been made about the vote being granted to prisoners. I have said that the Government have been actively considering the issue over the summer. It is only five months—not five years—since this Government came into office. We are looking at the situation and will make a report to the European Council of Ministers, as we promised over the summer, at its meeting on 30 November.

My Lords, is it not the case that there is room for more than one respectable view on this matter? Is it not further the case that, apart from the noble Lord, Lord Ramsbotham, and, presumably, the judges of the European court, very few people are in favour of this proposal? Will the Minister be guided accordingly?

I agree with my noble friend that there are people who believe passionately that the removal of the vote is a proper sanction for someone who has committed a crime that justifies a prison sentence. There are also people—the noble Lord, Lord Ramsbotham, is one—who see the granting of the vote to a certain category of prisoner as being a useful way of rehabilitating them into society. Both views are perfectly respectable. The Government are considering both views and will make their decision in due course.

It is a question. I remind the Minister of the view taken by David Howarth when he was the Liberal Democrat justice spokesman. He said:

“It is unacceptable for the government to pick and choose which human rights treaty obligations it fulfils just because it feels the issue is unpopular”.

Is this another fault line within the coalition and one of the areas where the Government want to remain silent? It is important that we hear clearly from the Government—and soon—what is intended with regard to an order that was made about the civic rights of prisoners. What does the Minister have to say about whether there is a fault line here?

I can absolutely assure the noble Baroness that no such fault line exists. As I have explained already, over a period of five months we have been looking at the situation and listening to various points of view. There is a Council of Ministers meeting on 30 November and we will update that council meeting in due course. We have not been unduly laggard in looking at the issue and, as I have said, the work is continuing.

Is the Minister aware that the rulings of the Strasbourg court are not binding on our domestic courts? Section 2(1)(a) of the Act states that Strasbourg court rulings should be taken into account, but an amendment to make them binding was rejected by this House and was never part of the Bill. Is the Minister aware also that the Hirst (No. 2) judgments contained a dissenting opinion from five of the 17 judges, including Judge Costa, and that in the opinion of many, including myself, the dissenting opinions are far more convincing than those of the majority? In these circumstances, does the Minister agree that it is not open to the Strasbourg court to add to the human rights enshrined in the convention in the manner in which it from time to time does, and that, so far as the issues in the present case are concerned, the Government should do no more than simply reaffirm the present position? Does the Minister finally agree—

Does the Minister finally agree that the Government must govern this country according to the laws in force in this country without regard to the occasional extravagances of the Strasbourg court?

My Lords, one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.

My Lords, is the Minister aware that there is an obligation under Article 46 of the convention to abide by the judgment? Is he aware that the British judge, Sir Nicholas Bratza, formed part of the majority? Is he aware also that Ireland, Cyprus and Hong Kong have all managed to introduce postal voting for prisoners without the slightest difficulty? Finally, is he aware that in November and December, the British Government will have to hang their head in shame in the Committee of Ministers when dealing with compliance with other judgments for being in default for more than six years?

My Lords, slightly more respectfully perhaps, I again make the point that one of the advantages of a Question like this is that it enables us to learn the broad spectrum of opinion and hear details of research, which probably reassures Members over why we are taking such a time carefully to consider this matter before the meeting on 30 November.



Asked By

My Lords, the provision of allotments is the responsibility of local authorities. Allotment legislation places a duty on local authorities, except in inner London, to provide sufficient allotments where they consider that there is a demand for them in their area. The Government are supportive of innovative approaches to making land available for community use, including food growing and community land-banking. Meanwhile, licences and leases are being developed by the Federation of City Farms and Community Gardens and the Development Trusts Association. All these could be ways in which communities gain more access to land for allotments.

I thank my noble friend for that reply. Is she aware that the National Trust has established allotments at several of its properties? Why cannot other organisations do the same? With the new planning regulations, should not more encouragement be given to garden owners to plant their own vegetables?

My Lords, the National Trust is indeed doing an extremely good job in providing access to part of its land for allotments. I think that we would all be glad about that. I am not quite sure how many other landowners or landholders might be happy to do this, but I am sure that the example that has been set by the National Trust will be followed. There is plenty of enthusiasm and encouragement for people to start growing vegetables in their own gardens. There is also encouragement for people to be community gardeners and growers, and there are vegetable plots all over the country.

My Lords, is the Minister aware of the very important work currently being done by the Royal Horticultural Society in using gardening as a way of developing skills in schools, and that some of this work is connected to the use of community land? Would it not be a very great shame if the kind of limited but important funding available for schools to contribute to this work was in any sense compromised by the forthcoming spending cuts?

My Lords, I draw the noble Baroness’s attention to what I said originally. The support for initiatives such as this comes from local government, which will make its own decisions about it. The sort of initiatives to which she refers are extremely valuable; they build into future generations a love of the land, the love of gardening and an appreciation of where our food comes from. Quite a lot of children just think that it comes out of the shop.

Is the Minister aware that allotment associations are currently ineligible to apply for funding from landfill tax credits on the grounds that allotment sites are not technically open to the general public? Does she agree that access to such funding could enable allotment associations to bring a lot more unusable plots back into use? If she does agree, what will she do about it?

My Lords, I agree with the noble Lord that anything that encourages people to have allotments and take up gardening is to be welcomed. I am not aware of the funding of which he speaks and will make inquiries and respond to him in due course.

The Minister will be aware that legislation gives a local authority the right to terminate a tenancy when it discovers that a tenant lives more than one mile outside of the area for which the allotments are provided. In assessing the impact of this and, generally, on supply and demand for allotments, what regard has been given to the effect of the proposed draconian cuts in housing benefit, which will force many poor people out of their current homes and away from their existing communities?

My Lords, this Question is about allotments, not housing benefit. I shall resist the temptation of being drawn into the whole question of housing benefit and simply say that the rules governing allotments are in the hands of local government, which presumably pays attention to them when considering these matters.

My Lords, is the Minister aware that schools in inner London, and particularly in Battersea, where I went to see a very underprivileged school last week, have developed the equivalent of allotment gardens? That has proved immensely beneficial to underprivileged children, who before had no inspiration at all and now have not only learnt to produce food but think that they would like to become chefs.

My Lords, I am very well aware of what the noble Baroness refers to. I refer also to what happens within my own local authority, which has developed raised gardens on land such as old tennis courts to be used for community gardens that will also be available for children.

Will the Minister give me an assurance that those who are digging for victory in their allotments are free to plant genetically modified crops without fear of them being ripped out at dead of night or even by the light of day?

My Lords, I cannot account for who might rip them out, but I doubt that it would be the local authority. I am sure that the association governing allotments will have its own regulations on GM food—and, if necessary, not having made them before, will make them now.

Has my noble friend noticed that a number of local authorities have already responded to the need for extra allotments, certainly in central Bedfordshire? Now is the time to plant Aquadulce broad beans; it is an urgent requirement for a good broad bean crop, so will she continue to give encouragement to the local authorities to produce more allotments?

I do not think that there is any need to encourage local authorities to continue to support allotments, as it is part of their statutory obligations to do so. Sometimes people will want to grow beans, but they might want to grow peas and a great many will want to grow tomatoes.

House of Lords: Conduct of Members


My Lords, I inform the House about the publication today of three reports from the Committee for Privileges and Conduct. The three reports, which follow investigations by the Sub-Committee on Lords’ Conduct, relate to the conduct of the noble Lords, Lord Bhatia and Lord Paul, and the noble Baroness, Lady Uddin. The reports will be published this afternoon and are now available to all Members in the Printed Paper Office.

The House now has a duty to consider these three reports. It has been agreed by the usual channels that the three reports will be debated together on Thursday this week, 21 October, as the first business after Oral Questions. At the end of the debate, the House will be asked to take decisions on the reports and, subsequently, on the recommendations of the Committee for Privileges and Conduct.

Identity Documents Bill

Second Reading

Moved by

My Lords, the Bill is short, and it is precise in achieving its aim of scrapping the identity card scheme and destroying the national identity register. Enactment of the Bill will meet the commitment set out in the coalition agreement and deliver the commitments made in both the Conservative and Liberal Democrat manifestos for the 2010 election. We very much welcome the opportunity for debate today and will consider the matters raised in this House together with the content of the legislative scrutiny report of the Joint Committee on Human Rights. I have not yet seen the contents of the report but I understand that it supports the Government’s approach.

A number of your Lordships will recall consideration of the Identity Cards Act 2006 and the fact that our opposition to the introduction of the scheme was focused on preventing the state from intruding unnecessarily into the private lives of individuals and wasting taxpayers’ money. We have not moved from that view, or on the inadequacy of the implementation of the 2006 Act, which has served only to confirm why we were right. The ID card scheme has not delivered the promised benefits. It has been an unjustifiable burden on the taxpayer and very poorly received by the public, with only 15,000 cards in circulation, of which some 3,000 were issued free of charge by the previous Administration.

My Lords, I am sorry to interrupt the noble Baroness. Before we go any further, I must say that I am finding it very difficult to concentrate on what she is saying because of the conversations that are going on on the Back Bench. Could the Chief Whip, or the noble Lord who is a Whip, remind noble Lords that if they wish to have a conversation, the Companion suggests that they retreat to the Prince’s Chamber?

My Lords, I am sure that the House will take note of what has just been said.

Those are the exiguous outputs of the scheme and confirm our long-held concerns that the scheme was expensive, ill thought out and unlikely to find favour with the public. I will return to those aspects and to the issue of passport security later, but I will concentrate for a moment on our fundamental concerns, which lie in the gathering by the state of information that is neither proportionate nor necessary.

The setting up of the national identity register has meant gathering voluminous biographical and biometric personal data on the individual, on the sole criterion of having applied for an identity card. Under the 2006 Act, the individual is required by the state to notify any change in personal details—for instance, a home address—for the lifetime of the card. As things stand, any failure to do so within that period of 10 years could result in the cardholder paying up to £1,000. One has to ask what kind of big brother state that is.

The crux of our deep concern with the ID card scheme is that the purpose of gathering and retaining data was not clear either in the 2006 Act or in how the national identity register operated since its inception. There is the potential for the state to use gathered information for any purpose which it thinks fit. In effect, each cardholder has paid £30 to be photographed, fingerprinted, put on a database and tracked by the state for the following 10 years. Your Lordships may consider this an exaggerated view of the ID card scheme, but sadly it is the reality. We do not always agree with Liberty, but in this instance it is spot on. In its oral evidence in Committee in the other place, the director of Liberty said:

“One of our fundamental concerns about the national identity register was that it was a multi-purpose and non-purpose-specific database, which meant that by definition the amount of information on it would inevitably grow and by definition it was not necessary and proportionate to a particular cause”.

That view was echoed by Justice in the same Committee, and it reflects the importance of ensuring that databases are subject to openness, accountability and proportionality. In our view, the ID card scheme meets none of those key requirements. Instead we have a scheme with little or no purpose that allows the state to intrude into the life of the citizen. There was no attempt in the legislation to achieve the right balance between national security and public protection and the rights to safety and privacy of personal data. The ID cards legislation is a measure without equal in gathering large quantities of personal data from members of the public not suspected of any wrongdoing, which added insult to injury somewhat by requiring them to pay £30 for the privilege.

On cost, the previous Administration expended a total of £251 million. This went on projects to establish identity cards, passports with a second biometric feature and other related programmes. Prior to that, the Home Office spent an additional £41 million developing the policy, legislation and business case for the introduction of identity cards. Furthermore, it was estimated that a further £835 million would have to be spent on the national identity scheme by 2018. This is a huge waste at a time of financial stringency.

When promoting ID cards, the previous Government indicated that the existing and proposed spend was an investment and that the return from ID card sales would recoup taxpayers’ money, but the reality has been different; £251 million to issue 12,000 chargeable cards might be called reckless, which is why we have stopped all spending on the scheme and closed down the existing card-issuing operation, pending the outcome of parliamentary consideration of this Bill. We anticipate savings of £86 million over the next four years through cancellation.

Your Lordships will be aware from consideration of the Bill in the other place that there was a great deal of debate on the issuing of refunds or the provision of discounts or credits against future passport applications. The cost of providing refunds would be in the region of £400,000, which is not a trivial sum. We have come to the conclusion that it would not be right for the taxpayer to foot this bill and to add to the already excessive spending on the scheme.

We realise that some people who spent £30 for a card with a 10-year life expectancy will be disappointed that it will be cancelled later this year without any refund, but those who chose to buy a card did so in the full knowledge of the unambiguous statements by the coalition parties that the scheme would be scrapped if we came to office. They cannot now expect taxpayers to bail them out.

My Lords, is the Minister saying that it is a general principle that members of the public are meant to read through the manifestos of all the parties before making a decision, and that that decision is at risk if another party wins? That is an extraordinary argument.

My Lords, citizens have to be aware of what is going on around them. It was clear that this scheme would have a risky future ahead of it. I shall deal in a moment with one or two of the other points that were implicit in the noble Lord’s question.

Another idea that was advanced in Committee in the other place was to allow existing cards to remain valid until expiry. That would have required maintaining the infrastructure for the next 10 years or so—another problem. The cost of so doing would have been in the estimated region of between £60 million and £80 million, and we do not consider that spending at that level is justified.

My final point on refunds relates to the statutory basis for the issue of ID cards. There is no contract here; an identity card has been provided in the context of a statutory framework and is not available for the remedies that might be forthcoming where an agreement is governed by contract or consumer law.

The 2006 Act makes no provision for a refund policy, either in the case of early cancellation of the scheme or withdrawal of the card by the issuing authority, or by the individual who simply wishes to get out of the ID card scheme. There has been no provision in the law.

I am most grateful to my noble friend for giving way. Will she give sympathetic consideration to the possibility of refunding those who took out their ID cards before the manifestos were published? They seem to me to be innocent citizens, if I can put it that way, and I am sure that it would please a lot of people if it were possible to do that.

My Lords, the opposition of both coalition parties to ID cards was well known well before we incorporated that in our manifestos. This was not a surprise to the world. I am afraid that I cannot hold out any prospect of acceding to the noble Lord’s suggestion.

I turn to one other aspect of the 2006 Act that affects the integrity and security of the British passport. The UK passport is a highly secure and well respected document, both nationally and internationally, and it complies fully with international standards. The recent design changes announced on 5 October this year further enhanced the security of the document. It is essential that we ensure that there are sufficient powers available to help prevent and detect fraud. That is why we have proposed to retain the offences set out in the 2006 Act that deal with fraudulent access to, and use of, identity documents other than identity cards. They result in about 3,000 prosecutions each year for an offence with potentially very serious implications for both national security and, indeed, for crime prevention.

The second issue relates to the decision of the coalition Government to halt the introduction of the second biometric indicator in passports. The second biometric would of course have been fingerprints, in addition to the existing facial imaging. We do not believe that adding the second biometric indicator increases the security of the document, which is already at a very high level. By halting plans to introduce a second biometric, we are saving the taxpayer a further £134 million. Furthermore, we do not consider that the holding of a database of fingerprints of some 80 per cent of the British population—all those who make passport applications—is a proportionate response to the level of risk. National security and public protection are of paramount importance to the coalition Government, and we will not allow them to be compromised or endangered. We keep such issues under continuous review, but as things stand we do not consider that a second biometric is required to enhance the existing very high security levels of a British passport, or, indeed, to enhance its acceptance by border agencies around the world.

EU countries subject to the relevant provisions of Schengen will require their citizens to provide fingerprints, but we also know of other countries that will not be making this requirement. A country as border-conscious as the United States does not, nor do Canada, Australia and New Zealand. They have no current plans to use fingerprints in passports but are instead focusing, as we are, on the enhanced use of biographic and facial imaging based on identity authentication techniques: so we do not consider that a convincing case for having fingerprints in the passport has been made.

The Identity Documents Bill is about getting rid of an expensive and intrusive scheme that placed unnecessary and disproportionate requirements on the individual to provide information to the state. The Bill is a major step along the route of returning power to the citizen. At the same time, we have been careful to retain existing powers to tackle those who choose to commit, or attempt to commit, identity fraud. We have tabled a government amendment to Clause 10 in the other place to increase the safeguards for the individual in relation to the acquisition and retention of data in connection with passport applications. So while we add necessary precautions, the core function of the Bill is to remove from the statute book the costly, unsuccessful and invasive card scheme, to the benefit of the taxpayer and the freedom of the individual. On that basis, I am pleased to present the Bill for your Lordships’ consideration, and I beg to move that the Bill be now read a second time.

My Lords, I thank the Minister for outlining the Government’s Bill so clearly and concisely for us this afternoon. We are very grateful to her. It is perhaps slightly ironic that we should be debating the Bill at the start of National Identity Fraud Prevention Week. ID fraud is, as the noble Baroness will know, one of the UK’s fastest-growing crimes, with nearly 2 million people a year falling victim to it, costing the country some £2.7 billion.

While in government, my party, as the House knows, introduced a system of voluntary identity cards. The identity card scheme was envisaged as a convenient, secure and affordable way of asserting one’s identity in everyday life. The card was a tool of empowerment—a way to give citizens some ownership of and control over their data. The card was affordable to nearly everyone, far more affordable than a passport. It was about protecting your identity and accessing your services. Indeed, in introducing consultation on ID cards in 2002, the then Home Secretary, the right honourable David Blunkett, described these documents as “entitlement cards” which would ensure that those who have a right to use our public services are the only ones to do so. The ID card functioned as a valid travel document throughout Europe, a way to demonstrate eligibility to work, and a proof of age for young people or those without a driving licence. It also added some protection against identity fraud—a crime which, as I say, costs a great deal of money each year.

Yes, we believe that the ID cards enhanced security. Their existence made illegal immigration and trafficking that bit harder. The Police Federation of England and Wales has long supported the scheme. It said:

“The Police Federation has backed an identity card scheme for over a decade, not as a knee-jerk reaction to any one specific or emotive event, but following objective appraisal. Unfortunately, all too often the case for identity cards is not pushed hard enough for fear that their introduction would be seen as infringement of peoples’ civil liberties. However carrying identity cards brings benefits to us all. If an individual is stopped by the police, they would be able to confirm their identity instantly; the result of which is that they would not have to report to a police station—a lengthy process that would amount”,

so the Police Federation argued,

“to a far greater infringement of their liberty”.

In an age when security is paramount, ID cards can help to protect us all. The existence of the national identity register provided the security services with a verifiable and authenticable database to contribute to their role in safeguarding the public. It was in making the obtaining of multiple identities harder that we believe the ID card scheme offered an obstacle in the way of would-be terrorists. I pray in aid the noble Lord, Lord Howard of Lympne, who said in 2001:

“Britain is the easiest country in Western Europe in which criminals and terrorists can lose themselves. If we are serious about tackling this problem, there is one obvious remedy—identity cards”.

That is no doubt why, under his leadership, the party opposite—which now makes up the Government—voted in favour of the Labour Government’s first Bill on this matter in 2004, and why it supported it in the 2005 general election campaign.

Having said all that, I wish to make a concession, which has also been made in the other place. However much these Benches may have supported the introduction of ID cards, we cannot deny this Government’s mandate to abandon the measure now. It was one of the precious few proposals that appeared in both the Conservative and Liberal Democrat manifestos. Therefore, we absolutely recognise the right of the Government to pass this Bill. However, that is not to say that we do not think there are considerable problems with the Bill before the House today. I shall raise some concerns and my noble friend Lord Hunt of Kings Heath will raise others.

We believe that the 15,000-odd ID cards already in use should continue as a legitimate form of identity until their expiry date. We argue that it is unfair, because of a change in government policy, to penalise people who have spent money on these cards. In the other place, as justification for their refusal to compensate card holders, the Government repeatedly deployed the argument—which was used again by the noble Baroness this afternoon, slightly unconvincingly, if I may say so with great respect—that:

“People knew well before the election what would happen if a Conservative Government were elected”—[Official Report, Commons, 9/6/10; col. 346.]

Am I alone in thinking that that argument is shocking in its arrogance and deep unfairness? The Government demonstrate a mean-spiritedness on this issue in not attaching a money resolution to the Bill. As a result we will not be able to move an amendment to call for refunds for card holders. Such a refund would cost less than £400,000 to deliver. In the context of the wider costs of scrapping the scheme—the Government have claimed that it will cost £5 million this year to implement the Bill—that is a comparatively small amount.

Furthermore, in refusing to offer compensation the Government really are riding roughshod over consumer protection law. We on these Benches agree with comments made in the other place that the Government's attitude to the cancellation of the ID card scheme is symbolic of their lack of regard for ordinary taxpayers—many of those affected are elderly and some are not the richest in society—who in good faith have spent money on purchasing the card. Not to compensate them seems to us a pretty cold-hearted approach. We shall certainly bring this matter back in Committee.

If the Government will not offer card holders a refund, we suggest that a credit of £30 should be attached to card holders’ next purchase of a passport. It seems plain to us that existing cards should remain valid until they expire. We would be grateful to hear the noble Baroness’s view on this. If the Government are not open to this argument, we would like to know what they have to say to the often older and poorer members of the public who took up the opportunity to purchase an ID card under an Act of Parliament. They will be inconvenienced and out of pocket if the Bill is passed as it stands.

We have doubts about the need to destroy the data held on the national identity register. We are committed to the security of the British passport and consider that data held on the NIR, especially the biometric information, is valuable in achieving this end. As the noble Baroness said just now, the Government have announced that they are halting the second generation of biometric passports. However, in scrapping the data already held and the infrastructure which has built up around the national identity register, it seems that the Government’s real intention is to scrap proposed second generation passports altogether. We disagree with that approach, which risks leaving Britain out of step not only with the rest of Europe but with other countries as well.

The Prime Minister himself has previously argued that there is clearly a need for biometrics on passports. I remind the House that following the British-Israel row over the use of fake British passports in the killing of Hamas leader Mahmoud al-Mabhouh in Dubai, the right honourable William Hague, the Foreign Secretary, acknowledged the value of biometrics. Biometric passports and the register represent important contributions to the integrity of the UK's system of identity. The Bill will undermine this. With the permission of the individuals involved, data on the NIR should be transferred to the Identity and Passport Service.

There are other arguments. We are concerned that the scrapping of the scheme will not allow us to learn from the experience of issuing cards to airside workers at UK airports. There are potential lessons in enhanced security which could have been applied to other areas, but now we will never know.

There are equality concerns. The ID card was the only form of identity proof that could be issued to transgendered people in both their birth gender and acquired gender, thereby making it much easier for them to prove their identity without fear or embarrassment. Transgendered people were not included in the Bill’s equality impact assessment, and there has been no consultation whatever.

As Liberty said in a press statement on 27 May 2010 and in its contribution to this debate, it is inequitable to maintain ID cards for foreign nationals while scrapping those for everyone else, as the Bill will do. We also have arguments with the Government about the costs involved. My noble friend will address that issue.

Before I conclude I remind the noble Baroness that, in a former life, not long before she came to prominence on the opposition Benches, and now on the government Benches, she said something which I suspect she thought she might be reminded of during the course of this debate:

“If you’re not going to have ID cards you have to find other ways of protecting identity and I don’t know how you do”.

Why has the noble Baroness changed her mind?

My Lords, shortly before the general election I was asked at a meeting what would be the first new Bill that I would introduce if I had the opportunity to do so. I said that we had far too much legislation already and that I would be looking at making repeals before I would look at introducing new laws. I was on a panel with a Member of Parliament who had been a Home Secretary and he agreed with that analysis. The Identity Cards Act 2006 was not in the “unnecessary” column; it was in the column marked “plain wrong”. I am therefore delighted to welcome this Bill and to note the significance of the fact that the upholding of civil liberties and the right to privacy are being given parliamentary time so early in this Parliament.

Even those who were initially attracted by the, “I’ve done nothing wrong, so I have nothing to fear” argument were, in increasing numbers, losing faith in the effectiveness of ID cards. The events of 9/11 and the Madrid train bombings answered the assertion that ID cards would help in dealing with terrorism. As for organised crime, identity fraud—which the noble Lord, Lord Bach, mentioned—is committed mostly online, where identity cards are irrelevant. As for the potential convenience for young people in proving their age, all I can say is, “some nut, some sledgehammer”.

Then, of course, we have heard about the cost. The waste of money is a scandal. The noble Lord, Lord Bach, has mentioned refunds. I agree that there is an issue regarding the payments made by individuals. However, it is completely disproportionate to suggest that the charges that have been paid by individuals are a greater issue than the cost of the scheme so far, and its potential cost were it to be retained.

I could have spent 15 minutes reading into the record the quotes that I found in a very quick internet search. Instead, I will share a couple. These expressions of concern by citizens—I use the term deliberately—very effectively make the point. The first is:

“Why should I have to validate my very existence by signing up for this National Identity Register/ID cards? The potential of this data to be abused/lost/stolen is almost a certainty never mind the fact you have to pay for the privilege. It’s crazy that law-abiding people will be punished for not having one or not keeping their details up to date and it provides no extra benefit whatsoever. Saying it will counteract terrorism is an absolute delusion too”.

The second comment that I will share is as follows:

“ID cards will do nothing effective to reduce terrorism or crime, indeed criminal and terrorist organisations with the resources will probably find ways around them anyway. These cards do however extend the control and interference of the state by another step. This government in particular is investing heavily in building a very good infrastructure for oppression. I will not sign up for these cards, nor carry one. The scheme should be scrapped without compensation to the organisations involved and any money saved moved into worthwhile parts of the budget, perhaps even to help reduce the causes of crime by improving education and youth services”.

Those comments go to the heart of the matter. I do not need to spell out the concerns that we all have about the vulnerability of the personal data to which they refer. I look forward to debating in Committee amendments to explore points from the Joint Committee on Human Rights about the offences that are being re-enacted, and about information sharing in connection with the issue of passports. The JCHR picked up, among other things, on comments made by the Information Commissioner’s Office. I will quote from the Hansard report of the written evidence given to the Public Bill Committee:

“There should be no room for ambiguity over the information which will be destroyed”.

That is a matter that we will come back to.

Mention has already been made of biometric immigration documents, and the need for better language than the divisive “ID cards for foreign nationals”. I appreciate that residence permits are required for a fair system of border control. I hope that the Minister will comment either now or when we come to these points in Committee, as I am sure we will, on who has access to personal information held by the National Biometric Identity Service; how long the information will be retained; whether it will be retained after the individual has left the UK, and if so, why; and whether the UK goes further than is required by European law.

I look forward to passing the Bill after the proper scrutiny to which I have referred, and to the further protection of civil liberties that will no doubt be coming to us—to rebalancing, if I may use a good new Labour term. We can still learn lessons. The noble Lord, Lord Bach, said that it was a shame that we were scrapping the schemes because there were lessons to be learned. I hope that we can learn them in any event.

The ID register is an authoritarian strand of government that I deplore. I see no justification for the scheme other than that “it was invented here, but here is now there”. I do not want to be unnecessarily divisive, because all of us who value our liberties and who rely on a common-sense approach to good government should welcome the Bill—and I believe that they do, because I recognise that those views are held on all sides of the House.

My Lords, as one of many who frequently expressed extreme unhappiness about the Identity Cards Bill as it passed through all its stages in your Lordships’ House, I was delighted to hear the announcement by the Government that most of its provisions would be repealed. I am even more delighted that the Identity Documents Bill has reached this stage so soon.

It was not just identity cards that presented a problem; of much more concern to me and others was the national identity register. As Liberty always maintained, these were a costly and completely unnecessary intrusion into our personal lives. Several noble Lords warned about the complexity of implementing such a scheme, the details of which were left to secondary legislation. All went unheeded by the previous Labour Government as, relentlessly, they ploughed on in their determination to get ID cards and the register into law. Now it seems that at least some members of the Labour Party have changed their view, for the new leader of the Opposition and another leadership candidate declared that they, too, are strongly against ID cards.

The cost and intrusive nature of ID cards and the register were not the only objectionable aspects of the Identity Cards Act 2006. Time and again, the previous Government were warned about the lack of security of the database and the detrimental impact on race relations. Of primary concern was the fundamental shift in the relationship between the state and the individual that would have occurred had the legislation been brought into effect.

I was fortunate to have worked with the Earl of Northesk. The breadth and depth of his knowledge about the functioning of computer databases were without parallel in your Lordships’ House and I am sure that his expertise will be sorely missed. He consistently warned that no database could be totally secure and that one as large and unwieldy as the national identity register was sure to be attacked. Recent warnings of cyberterrorism appear to endorse his belief.

I am probably not the only noble Lord to have received a briefing paper from the Northern Ireland Human Rights Commission, which expressed its concerns about the likelihood that racial discrimination would have been exacerbated by the Act. I was reminded of an occasion in the late 1950s when I worked in the Ministry of Pensions and National Insurance in Birmingham. In those days, a national insurance card to which stamps were attached was issued to each working person. This would show the contribution year, the gender of the person and the class of stamp. Additionally, as the colour of the card changed each year, the colour was written in words below the gender. I vividly remember chaos breaking out at the counter when an Irishman demanded that his card be changed for one of a different colour. It transpired that he had not understood that the separate words “orange” and “man” did not indicate that he was an Orangeman. It took quite a while to calm and reassure him, for clearly he felt that both his privacy and his religious affiliations had been affronted. This is an indication of the sensitivities that must be considered when enacting measures such as this.

The exorbitant cost of setting up and maintaining the register has never been justified, but that issue has already been thoroughly aired, so I will not labour the point.

Article 8 under the Human Rights Act relates to the citizen’s right to privacy. The Minister will be aware that there is still a great deal of unrest about possible infringement of this right by the UK Borders Act 2007. Both Liberty and the Northern Ireland commission have expressed their concerns that the gold-plating of that Act goes beyond the requirements of EU regulation. Does the Minister share those concerns or does she hold that the documents required are a requirement of EU law? If the latter, will she please tell the House which powers, purposes and sanctions under Sections 5 to 15 of the UK Borders Act 2007 are over and above the requirements of EU law?

Sections 25, 26 and 38 of the Identity Cards Act 2006 are to be retained in Clauses 4 to 10 of this Bill. As a former long-serving member of the Asylum and Immigration Tribunal, I am well aware of the number of false documents that are encountered in this jurisdiction. Clause 6 lists documents whose possession is an offence, but there is no definition of “reasonable excuse”. Will the Minister define that phrase, please? I also take this opportunity to make a plea for the consolidation of all the law that relates to immigration, asylum and border control. There has been such a welter of primary and secondary legislation in this field over the past two decades that I am amazed that anyone can ever get a full grasp of the subject. There really is a need to rationalise the law, to simplify the requirements for the identity of non-EU nationals and to bring the law into line with European law.

I look forward to the further stages of this Bill in your Lordships’ House and wish it a fair wind.

My Lords, it would appear that I may be the only Back-Bencher to oppose this legislation. I spoke during the Second Reading debate on the main Bill and I said then that it was necessary. I also said that the one mistake I thought was being made by the Government of the day was that they were not making such ID requirements immediately compulsory for all British citizens.

I think that this Bill is a backward step because we are in the middle of a major technological revolution that is transforming the country we live in and the way in which we carry out a whole variety of different functions, such as the way in which we access our services and the health service. Eventually it will transform the way in which we vote and do business over the internet, as the noble Baroness, Lady Hamwee, suggested. Yet, at the same time as this revolution is taking place, here we are going backwards and taking away biometric identification cards, which would allow people to access a whole range of services in different ways—something that they cannot do at present but would be able to do in the future.

However, the point is that all of us will be able to do that. The Minister introducing the Bill has an ID card hanging round her neck, as do I. We all have to have an ID card to be Members of this House: we have to produce some form of identity to get into the building. Even visitors who come into this House now have to have their photographs taken to ensure that we know who they are when they walk round and to ensure that they cannot switch identification with someone else. I have a wallet full of cards which give me various rights of access. The noble Baroness in front of me, Lady Kennedy of The Shaws, is busily saying that, “It’s not this and it’s not that”. Does she want the drive to move forward with ID cards to rely entirely on the market, which is what will happen?

The noble Baroness, Lady Hamwee, rightly said that most identity fraud takes place on the internet. That may very well be true. At some point the banks and the people who provide services on the internet are going to wake up to the fact that that fraud costs £2.8 billion and they are going to ask you to put some form of ID card into your computer to ensure that you are the person doing the deal. My noble friends are saying that some do that already. Therefore, the market will drive this forward. There will be a whole series of means by which we produce ID in order to get the services that we want but, if the push for that is market-driven—which is my major objection to what this Government are doing—that will increase the technological divide and wealth divide between those who have access to ID cards and those who do not. Perhaps it is taking a hammer to crack a nut, or whatever expression the noble Baroness, Lady Hamwee, used, but those who do not have such access are the young, the deprived, the poor and the people who are stopped by the police on our streets who cannot prove who they are. These are the people who need ID cards. These are the people whom we want to have some form of identity so that they can say, “This is who I am; I can prove it. If you want to put my ID card into a machine, it will prove who I am through the biometric system”. If we do not have some form of identity cards, we will find that the technological gap between the young and the deprived people who live in poor areas of our country and the rest of us will grow and we will live in an even more divided society. That is what this coalition Government are about, so perhaps I should not be very surprised by it. However, I certainly oppose the Bill and, to some extent, I regret that the opposition Benches are not opposing it more thoroughly, as they should be doing.

My Lords, I admire the noble Lord, Lord Maxton, for sticking to the old guns, as you might say. It may be worth while in this Second Reading debate reviewing where we have come from because I am afraid that the noble Lord, Lord Bach, was not accurate in what he said. The principal issue that exercised this House back in 2005-06, to such an extraordinary degree that we threw that Bill back to the Commons three times, was the issue of compulsion. It is wrong of the noble Lord, Lord Bach, to start his speech by saying that the previous Government introduced a Bill for a voluntary card. Indeed they did according to their manifesto, but when the Bill came out it was compulsory. That is the rock upon which the opposition in this House was built and that opposition then grew across all Benches. It is as well to remember that.

I pay tribute to Mr Willcock. I do not suppose that many in the Chamber remember dear old Mr Willcock who, when asked by a policeman in 1952, refused to produce his identity card. He said, “I am not going to produce my identity card. The identity card was to stop the Germans, not to help you on some piffling nonsense”. The High Court upheld the good gentleman’s refusal and the identity card legislation was swiftly repealed. The point of that was to show that identity cards tend to have what you might call usage creep. The state cannot resist the opportunity to use the card for more and more things in more and more situations.

Again, one aspect of the Bill of 2005 that this House objected to profoundly was the right of the Secretary of State to add to the circumstances in which the identity card could be used and, in particular, to add to the category of information that could be on the national identity register. Let us not forget that the national identity register was to be unique in the world in terms of the amount of information that it would collect on each citizen. Microsoft licked its lips and referred to the register as the great honey-pot because it was to be the greatest source of information on earth.

The noble Lord, Lord Maxton, objects to what we are doing now because of the commercialisation that he says afflicts disadvantaged youths who want to establish their identity. I would be totally sympathetic to that if I felt that he was correct. However, he omits to remember not only that the ID cards that the Bill will abolish would have been compulsory if this House had not intervened three times but—this could never have been taken away—the huge cost of the scheme, which the LSE working group established would be more than £20 billion over the first 10 years and which was to be recouped by selling the ID cards to the great retailing outlets. These would have readers which, if you spent more than £15 at XYZ store, would read the purchase into the national identity register. Every time that happened, the store would have paid a small sum of money, and—how many of us remember this?—the national identity register would have recorded every occasion on which the card was used. The noble Lord, Lord Maxton, looks quizzical, but I assure him that that is so. That is why people objected to the sort of information build-up to which the card would lead.

We are having a Second Reading debate on a Bill that will repeal an Act. Will the noble Lord say where in the Act the facts that he is putting forward appear? In the Act that was passed in this House and in the other place, there is no reference to that.

It is a bit much to ask me to refer to a point of detail in the Act. I shall tell the noble Lord afterwards, but he need only read Hansard. I assure him that the Government did not deny that they would pay for a substantial part of the cost by commercial use and that every use of the card would register on the NIR. I think that the noble Lord, Lord Maxton, will agree with that.

Let me quickly pay tribute to NO2ID and Liberty for the huge help that they gave this House in respect of that Bill. I also repeat what the noble Countess said about Lord Northesk, whom we all miss and who was of great use to the House in the course of the passage of that Bill, as was the noble Baroness, Lady Anelay, who is not in her place now.

To come to the Bill, those of us who fought and fought the previous Bill welcome this one with huge enthusiasm. I believe that the Identity Cards Act 2006 would have affected fundamentally the relationship between the citizen and the state. It is as well to think of “citizen” rather than “subject”, because in some respects that Act would have had a deleterious effect on that vital relationship. However, I say to my noble friend, who confirmed in opening the debate that there will be no repayment of the £30, that I think that that is a serious mistake. It seems unfair to say that people should have kept an eye on what we do in this House and should have carried in their heads the fact that the Liberal Democrats and the Conservative Party had made clear statements in the course of that Bill’s passage that they would repeal it if they came to power. Simple fairness should lead Government to repay those sums of £30—whether to old women or to rich hedge fund managers, I do not mind. It is not fair to abolish ID cards and not to repay that money. It is a modest sum in relation to the total costs already incurred.

I am sad that the Bill is as complex as it is. I do not know how many noble Lords have tried to read through the Bill, but it is a nightmare, even for an old lawyer like me. In Committee, I shall table a lot of amendments to attempt to make its provisions clearer. I draw attention to just a couple of clauses. In Clause 4, “Possession of false identity documents etc with improper intention”, the definition of improper intention in the second subsection does not say whether it is exhaustive. In addition, the reference to “false identity documents” is not true to the clause because it covers situations in which the documents are not false. The language of the clause is also extremely complex; I hope that we will be able to simplify it as we go along. Clause 6(1)(a) provides for an offence of possessing without reasonable excuse,

“an identity document that is false”.

That does not seem to be reconcilable with an almost exactly parallel offence in Clause 4(2)(a). I hope that that is not too detailed a point for a Second Reading debate.

Clause 10 desperately needs rewording, because it allows the Secretary of State to require various authorities to provide him or her with what is called “verifying information”. At the end, there is a nasty little subsection that states that the Secretary of State may specify by order,

“any other person … for the purposes of this section”.

That could take us right into the realms of private businesses, and we will need to look at that.

I welcome the Bill with great enthusiasm, as have my noble friend Lady Hamwee and others. I would like to think that, by the time it leaves us, the Bill will be really fit for purpose as well as fit in intent.

My Lords, I am very pleased to follow the noble Lord, Lord Phillips. I congratulate him on his exposition of what happened when this House discussed the Identity Cards Bill and improved it to the extent that it was rather better than it would have been had this House not been involved. Believe me, it would have been a very much worse Bill had this House not given it a lot of attention.

Being brought up in the Labour Party, I had always believed that identity cards were the tools of dictatorships and that the Labour Party, being in favour of individual freedom, was not in favour of such instruments that were used by dictators. I was very disappointed that such a Bill should have been introduced by the Labour Party and I am very disappointed now that it is opposing this Bill to repeal the bad Bill it introduced during 2005-06.

I am very happy to congratulate the coalition on bringing forward so quickly this Bill to repeal the Identity Cards Act. I have looked at many manifestos from both parties in my time and I had got rather cynical about them. I had thought that the coalition was against the Identity Cards Act and I had no doubt that it would be under great pressure from all sorts of interests, such as the security services, the police and the Home Department, not to repeal the Act. It deserves congratulation on being able to stand up to such pressure and, within five months, to bring forward the Bill and to take it through the House of Commons to this House almost unscathed. I therefore straightaway say that I support the Bill.

There is little to criticise in the Bill, although I have heard what the noble Lord, Lord Phillips, has said about certain aspects of it. No doubt we will come to these matters in Committee. I also hope, like him and others, that the Government will rethink their position on refunding the money to the 15,000 people who were inveigled—if I may use that word—into buying identity cards. It would cost a few hundred thousand pounds to do that, but the noble Baroness has said that we would save £800 million. Perhaps, under those circumstances, the Government will think about this. In any event, I have no doubt that there will be amendments on this matter in Committee. What supervision will there be to ensure that information contained in the National Identity Register is destroyed? It is important that the public, as well as Parliament, are given absolute assurances that the information already held is destroyed.

I understand the position of the noble Lord, Lord Maxton, which has always been his position as I understand it, but I do not understand the position that the Labour Party is adopting now. During his campaign for the leadership, the leader of the Labour Party, Mr Ed Miliband, said that it was a mistake to bring forward the identity card system and the identity register. I cannot understand why the Labour Party is not taking this opportunity to say to the House and to the country, “We were wrong and we support the Government’s Bill to put that wrong right”. I wish it would think about that between now and our further discussions on the Bill.

The Government have made a good start in this Bill to abolish ID cards and the national identity register, but there is much more to do in order to rid ourselves of many of the restraints on individual freedom and restrictions on free speech that have built up over the past few years. It is intolerable that people should be arrested, detained and questioned by the police on the say-so of some third party if they say something out of place to a friend or to someone else—even if the remarks are not relevant to that third party.

Even worse is the risk people run of losing their employment if they dare to criticise public policies or administration. I mention the recent case of a teacher, Miss Birbalsingh, who made a speech at the Tory Party conference properly criticising aspects of education. This should be a wake-up call to all of us, including all the political parties. It appears that when Miss Birbalsingh returned to her school, she was sent home like a naughty little girl and, as I understand it, has now lost her job. We have reached an awful pass when employees can be sacked for bringing legitimate concerns to the attention of the public. I hope that the freedom Bill will contain measures to ensure that this sort of thing does not and will not happen again. The Tory Party in particular, bearing in mind the eloquent speech made by Miss Birbalsingh, really should do something about it.

Finally, I join the noble Lord, Lord Phillips, in thanking the people in Liberty and NO2ID who have been tireless in their effort to keep the issue of ID cards and the national register before the public and have campaigned for the Identity Cards Act to be repealed. It is interesting to note that during the period that these groups have been active, support for ID cards has gone down and down. They used their own money and it is by their efforts that we are now in the last stages of repealing this iniquitous Act. That is a tribute to them and an indication that ordinary people working together in concert can still help to achieve great reform in this country.

My Lords, I am honoured to follow my noble friend Lord Stoddart of Swindon. I apologise to him again, because the last time this issue was raised, I called him “Lord Swinton” by mistake. Along with my noble friend Lord Phillips of Sudbury, we have all spoken on identity cards enough to bore the pants off a wild boar.

This is a difficult subject for me because I have always had a crisis of identity. I do not oppose the Bill, but it is not past perfect, perfect or even future perfect. That is because the first thing you need for identity is a name, and as the prayer book says, “What are your name or names? Nomen or nomine”. For those of your Lordships who have heard me bang on about this before, the question is this: ask yourself what is your name, and then ask what is your full name, and then ask what is your legal name. Of course, as noble Lords know, you do not have a legal name because you have the right to call yourself what you like. Some of us have suffered from being put into your Lordships’ House at an early stage. I found that instead of being Malcolm Mitchell-Thomson, I became the right honourable Sir Malcolm McEacharn Mitchell-Thomson, Baronet of Polmood in the County of Peebles and Baron Selsdon in the County of Croydon.

In my travels over the years—and I have travelled much—this has led to me sometimes being registered by the first two words in my passport or birth certificate when I have tried to prove who I am. Those words may be “the right”. In the continent of Europe you take the surname or last name first and then the Christian name, so I have been Monsieur or Herr “right the”. As your Lordships know, “The” is a well-known Vietnamese Christian name. At the other end of the scale, when I have been “of Croydon”, I have been called Monsieur “Croydon of”, and “Of” is a Norwegian Christian name. I would like to be called “Malcolm Selsdon”, but this is denied to me.

If we are to have an identity card or passport, the first thing we need to do is determine the full name of the holder. In an attempt to prove myself wrong again, I asked the Whips Office if it would give me the Christian names of all Members of your Lordships’ House. I then searched through these names, only to find that many of your Lordships are called by a name that is not either one forename or another. So how do you prove who you are? And, having proven who you are, how do you use that information for your benefit?

The British passport has a reference number containing 24 figures and four letters—it is perfect—which is scanned in when you go to an airport. However, it is big, and if you try to carry it with you when you go swimming you find that you have got a problem. Over time, I have taken a copy of my passport. Is it illegal to take a copy of your passport? I am not sure that it is, but it is photo voltaic. It also has a photograph of me because, if I wish to identify myself to someone, I need to have a photograph. Almost everyone these days requires proof of identity.

I say to the noble Lord, Lord Maxton, that I do not carry a pass of the House of Lords because, when I came here, I was told that I should certainly know everyone who had come here before me, their name and their face, and that the best form of security is recognition. Then, in order to get to know the security people, I was given the numbers they had on their shoulders and I learned their names so that when I went by them very quickly everyone would recognise me.

My problem is that I lose passes regularly. On my bus pass I am called Lord McEacharn, which is one of my middle names, and on something else I am Monsieur Croydon of, but I would like to have my own name and my own photograph on every card that I have. For example, I would like to have them on my bank card so that no one can steal it. I would like that freedom and that right.

Having studied the European legislation on data protection, I went to each of the countries where I worked and asked, “Will you accept this miniature of my passport as proof of identity?”. I had had it put in plastic—but not in a shop; I did it at home so that I was not breaking the law—and it is the same size as almost any European identity card; it is also waterproof. I have a miniature as well, but I am probably breaking the law. That copy has saved me on many occasions when I have lost a passport. I admit that I have two passports because of the places I go to.

So, first, can the Government give a definition of what is a name? This is particularly important because if you do not start with a name you get into trouble. If you are Lord Hunt of Kings Heath and have the name Philip, the question then is whether there is one or two “ls” in Philip. If you have got a hyphen in the middle, which many of the machines cannot pick up, you get into trouble because there is a space which is filled in with a back slash, an underlining or something else. My wish, first and foremost, is to get a definition of the name. Everyone should then register their name and it should become a legal name. So, first, let us legalise names.

Occasionally you get into trouble when you arrive somewhere and find that your baggage has been stolen and you have nothing but what you stand up in. It happened to me in Rome. I said, “Please let me through. I have got to go to”—forgive me—“a Christian Democrat Party meeting”. I was asked “Do you have any proof of identity?”. I suddenly realised that I was wearing one of my father’s old suits—from the days when he could afford to have one made—and that it had written in it “Lord Selsdon”. So I took it off and gave it to the man. He went off and there was a lot of discussion. He then came back and said, “Your jacket has gone through. Can we now have the trousers?” The point that I am light-heartedly making is that I of course support getting rid of the previous Act, but I do not support the way in which the present Bill is structured. Please can somebody get round to explaining how one’s name is defined and may we in the United Kingdom end up with a right to a legal name?

My Lords, before the noble Lord sits down, perhaps I may say that I sympathise with him, as I am sure do all noble Lords. He is not as fortunate as me. My father and I always used to say that our name is quite the best of the four-letter words.

My Lords, I am not sure that I can help either of the previous speakers, but I would give one word of advice to the noble Lord, Lord Selsdon. In seeking the identity of Members of the House, it might be more profitable if he were to ask for given names and not just Christian names.

As has already been accepted by our Front Bench, the manifesto commitments on this issue of the Conservative and Liberal Democrat parties give them the authority to seek repeal of the previous legislation. I am fascinated by the speed with which it has been dealt; it could be because, so far as I can see, it is about the only item that appears in both manifestos.

In the debate on the gracious Speech, the Minister said:

“This Government have a strap line: freedom, fairness and responsibility. These themes run through the Government’s programme”.—[Official Report, 27/5/10; col. 240.]

I should like to test the question raised by the noble Lords, Lord Phillips of Sudbury and Lord Stoddart; namely, is it reasonable, free and fair now to say to people that the ID cards which they have voluntarily acquired and which have been legally provided are now to be abolished without compensation in any form and without continuing to provide the freedom of travel across Europe that was part of the reason that they bought the card in the first place? If it were a major issue of expense, one might say that, in these straitened times, it could not be afforded.

The impact assessment looks at the number of options available. The one which I find most attractive is Option 5, the mandatory return of cards with return of fees. It states that this would be of particular advantage because:

“Under this option, current cardholders would be entitled to reclaim the £30 cost of the ID card by returning it to IPS. The benefits of this over Option 1 include … Reputational benefits for the government, in dealing with people who purchased a now-useless card in good faith”.

Are we saying that the Government’s reputation is not worth, at maximum, £400,000, which would be the cost if everybody sought a refund? The impact assessment points to reduced enforcement costs as compared with other options. It also states that,

“the administrative costs incurred in dealing with claims over and above those incurred in collecting the cards in any case will be negligible, but reductions in risk relating to outstanding cards will also be negligible”.

That adds up to a powerful case for consideration of amendments in Committee, particularly when one takes account of the fact that we are expending some £82 million on a referendum on AV and something like £50 million plus on a proposal, if it becomes law, to elect police commissioners.

So I argue that the Government’s position in respect of refunds is not an issue of freedom—it is denying freedom. The agreements were entered into voluntarily. It has been argued that it was not a contract; I am not sure that that was how people who bought the cards would have seen it. Is it reasonable and, most of all, is it responsible?

The noble Baroness, Lady Hamwee, quoted letters from a couple of people who were unhappy about the ID cards. Both of them talked about compulsion—if I recall them correctly—but the ID card was voluntary. I shall quote from a letter that I received from a couple in July—I am quite happy to provide the Minister with a copy. It states:

“I would like our comments to be taken into account by the committee regarding the use of this card as a TRAVEL DOCUMENT in Europe. We can no longer travel long distances this card is fantastic to use. Convenient to carry and most of all welcomed by customs officers wherever we have travelled. Now we have a travel document for Europe at a reasonable cost why should we have to pay over £70 for a worldwide passport when we cannot travel worldwide? All governments spout about value for money, but when it comes to the citizens of our own Country we are denied value for money ... The country may be in a financial mess, but we bought these cards on the understanding they lasted for 10 years. One of our laws (The Sale of Goods Act) states they need be fit for purpose and be suitable for the life span intended”.

That is a very reasonable case made for why the whole of that group of people should get at least a refund. A more prosaic description says:

“The Coalition Government states 100 days to abolition. At least Dick Turpin wore a mask when he stole money off his victims”.

So there is not a population seething on the streets and waving flags to congratulate the Government on removing ID cards; there are mixed opinions.

I disagree with the noble Lord, Lord Stoddart, speaking from the Cross Benches, because I do not believe that at any stage public support for voluntary ID cards was ever less than a majority of those being polled. That was the case through the piece—and compulsory ID cards got a larger support than that. However, that is not the issue. I see no point in rerunning the Second Reading debate on a previous piece of legislation. I suspect that our memories are all faulty on this occasion. When I spoke earlier about the contribution from the noble Lord, Lord Phillips of Sudbury, I was referring to what, as the noble Lord, Lord Stoddart, said, was the outcome of debate in this House and to what became the law, based on assurances given by the Government—I gave them from the Front Bench together with the noble Lord, Lord West—which limited very severely the kind of use to which the voluntary ID card could be put. Therefore, I rest my case on what I asked at the beginning: is it reasonable, free and fair for the Government now to refuse either to refund or to give credit against the cost of a full passport? It may be that the majority of people have full passports, but some have nothing more than the ID card and will now have to go out and buy a passport without even getting the credit for the £30 that they have already spent against the passport that they have to buy.

I hope that the views expressed by myself and from the Liberal Democrat Benches and Cross Benches will have support, because otherwise I think that this is a mean Bill, whatever the justification for the repeal in the first place.

I apologise if the noble Lord misunderstood when I said “Christian”. I was referring to people who have been christened. He may want to have a debate later about the Baha’is and Patels and all the other people who have given names, which all appear in different orders. That was the point that I was trying to make.

My Lords, this Bill is a most welcome step by the Government. Many people have argued for many years that the introduction of ID cards and the national identity register was flawed on political, technical and financial grounds and would do very little to prevent terrorism, crime or fraud. As we have heard, a national identity register database could actually increase the risk of fraud and terrorism.

At its heart, the ID card and database proposals would, if proceeded with, change irrevocably the relationship of the state with the individual. It is one thing to have some form of personal identification during wartime, as we did 70 years ago, and quite another to create a massive national identity database for which identity cards themselves are simply a means to an end and not an end in themselves. Every swipe of the card could be recorded, as my noble friend Lord Phillips of Sudbury pointed out.

Why did the previous Government want such a database? Why did the obvious flaws not stop them? Why was the attack on individual civil liberties not seen as an issue? Why did the cost not seem to matter, given the serious structural weaknesses of the national identity register, which would have devoured far more money than the Government suggested? This Bill will stop the trend to a society in which private information becomes available on big databases that are accessible to large numbers of people, the vast majority of whom have no need of the information to which they would get access.

Never, since 2002, when the proposal for identity cards and the national identity register was first discussed, have I understood the justification for it. I cannot recall any reasoned, logical analysis of the need for it; that is because the proposal was never properly thought through. The official rationale seemed to be that the cards and the register would help in the fight against terrorism, but when terrorists are UK nationals entitled to an ID card or when they hold valid identification, as in the Madrid bombings, the case does not stand up to scrutiny.

Another ostensible reason was the need to prevent identity fraud, except that that is much more likely if you place lots of personal data in one place on one big database. Proponents of ID cards began to change the emphasis of the grounds of their arguments as the arguments were so convincingly won by those opposed, so we were told that there would be a convenience factor for young people when going to a pub or buying alcohol. As Liberty has pointed out, however, it is a very weak argument that we should construct a massive state database containing billions of biometric and other data, at a cost of several billion pounds, so that people can secure entry to a pub. Then we had the suggestion that ID cards might replace the concessionary bus pass for pensioners. Just imagine it: a multibillion pound scheme for identity cards being used to produce bus tickets.

The whole sorry exercise would have cost around £5 billion, at least—and that for a project that began life as a solution to a set of problems that were never clearly defined. Once the reasons were examined, they were found to be wanting and it became a project in search of a customer for, despite the fact that the Act has been on the statute book for over four years, only 15,000 ID cards have ever been produced. Of those 15,000, meanwhile, 3,000 were given free to airside workers. It now costs £5 million a year to run the current scheme, which is a cost of £400 per head each year. One is left with the impression that the previous Government, having finally grasped the nature of the flawed system they were creating, decided to head for the long grass under the guise of a slow start.

I am still left wondering why the previous Government believed so strongly in the value of big databases in which costs were rarely controlled and the security of data was so often not guaranteed. There are two kinds of scrutiny: first, who has access to what information; and, secondly, how secure it is from hacking or loss. As we know, there have been many major lapses in big government IT projects in recent years, and it seems pretty clear that the bigger the database, the higher the number of people who will need to access it and the weaker the security will inevitably be as a consequence. We should take note of some research undertaken by the Centre for Technology Policy Research at the London School of Economics, which tells us that,

“Despite a spend of as much as £21bn”,

a year,

“on public sector IT, it is difficult to find any compelling examples of direct productivity gains and improved public services”.

This is not just about waste on ID cards, but much more—not least the NHS database.

This Bill will stop the waste on ID cards and the national identity register, and stop the substantial erosion of civil liberties that was promoted by the previous Government. It is part of a broader rejection of intrusion by the state into people’s daily lives, for when the state acts it should be proportionate to the problem that needs resolution. The Bill will now prevent the second generation of passports, which would have added fingerprints to the facial biometric data already present on the biometric chip in UK passports. The previous Government’s plans for ID cards and a national identity register have been described by the director of Liberty as a grand folly. Well, that must be right; follies are created by people who have access to large sums of money and who have a fondness for frittering it on grand gestures. That seems to sum it all up.

My Lords, I think I am the last speaker before the gap, unless the Cross Benchers have finally achieved the status of being a recognised bloc with the right to have a speaker after the gap. That would be a wonderful way forward, because we might get further rights as well.

I have a few comments about the Bill. I welcome it very much, particularly because it perhaps indicates that this Government are taking a much more libertarian approach than their predecessor. Many people have asked why it all came about. The trouble is that socialists believe in central control because the state should be running everything while capitalists like to know everything about their customers, and to both the individual is a bit of a nuisance. Out of that grows the idea that we can sort it all out centrally.

To me, the national identity register was the objectionable part. I did not have a problem with a bit of plastic with a picture on it, replicating the “chip page”, as I think of it—that bit in the passport. It is rather sad in some ways that, having started issuing those, you could not have just that to slip into your pocket when you go over to France. It would have no greater authenticity than a passport, but you could use it for countries that did not have a visa requirement or need to stamp something in your pages; it would be waterproof, which would solve the problem of the noble Lord, Lord Selsdon; and it need not cost very much more because no other information would be gathered to produce it—it would just be a bit of plastic, produced in quantity for probably an extra £3 or £5. But we will not worry about that for the moment.

Everyone has said pretty much everything that can be said about this topic, so I would like to reinforce a couple of points and think about wider purposes and other points, so the Government might see where they could improve things elsewhere. The real problem that I have with all these great central databases is simple; Hitler was elected and got into power quite legally. Someone said to me years ago, “How do you break into Fort Knox?”. The answer is, “You steal the key”. If you get yourself elected to power in a democracy, eventually you have all the power to get at these things and there is no way of resisting it. Parliament has total sovereignty, and so some future Parliament can open up whatever security locks and controls you put on a database—unless, fortunately, you have some disobedient civil servants further down who ensure that the greater powers do not get to know about it or destroy the thing first.

I shall start the other way around. You may think that you have nothing to hide, but how accurate is the information? I do not have a problem with the powers in Clause 10 on credit checking, credit reference agencies and other things like that, but my one caveat is that the data are not accurate. But then the government data in these large databases are already inaccurate; when they have been audited, they have often been found to have a lot of errors in them. This is one of the troubles, and it is my lesson for the Government elsewhere; it is difficult to link up and reconcile large government databases. That is why the process gets very expensive, and then certain large consultancies—the usual big seven, eight or nine of them, which are generally American-owned, so they remove British taxpayers’ money to give it to their owners in America—will make an awful lot of money advising us on how to do it and the job will spin on for ever, as we have seen with certain other database projects.

The other thing about the cancellation of the scheme is that the Government have learnt a lot so far in trying to introduce it, and that knowledge has been useful. At the end of the day, the Government have a requirement for strong authentication of people’s identity in certain areas—think of simple things like security at the Ministry of Defence or access to government establishments all over the place. That will need to be retained, but you do not need a national ID card scheme to do that; that is just normal business practice. One of the groups that I sit on at the moment, an offshoot of a parliamentary group, is looking at the interoperability of identity card schemes among allies and internationally, as well as just in the UK. That is the sort of thing that we should be doing because therein can lie some cost savings, although there are a lot of complications with that, which I am not going to go into here.

The Joint Committee on Human Rights has produced an excellent report, its second of the 2010-11 Session: Legislative Scrutiny: Identity Documents Bill. It has some extremely good analysis in it. I draw attention to the section on non-EEA biometric immigration documents; perhaps we could save some money there, too. I realise that we need to have a biometric system to “deduplicate” people who make repeated applications to enter, or who try to falsify and get other people in under their original documents and so on, but are we actually gathering more information than we need? Do we think that we are trying to build this into a database of foreign residents because we think that more terrorists come into this country than we grow at home? We ought to look at the effectiveness of this before we gather too much information.

I also get worried about the exchange of information with other countries on how much is needed and how much is not. Is there some vulnerability regarding travel?

I should like to say something about purpose, in reply to the noble Lord, Lord Maxton. Identity cards are not designed to work online, so they will be useless when it comes to making transactions over the internet. There is a huge liability issue; if you use the card for financial or contractual purposes, where does the liability lie? The Government certainly were not going to accept liability, and other organisations will not accept a contract if there is not some liability in the proof of identity. This is what organisations such as the notaries—the notary public—and the scriveners provide.

Credit card fraud, which is often called identity theft but really just involves the theft of a credit card to try to steal money, is very different from impersonating someone. It is up to the banks to sort it out—it is their liability. They could easily increase the security of those tokens if they wanted to. They have chosen one of the cheaper routes—they use even less expensive routes abroad—because there is a balance between the cost and the amount of money they lose. They should really be using two-factor, preferably two-channel, authentication, and some are beginning to do it. It is not difficult to do, and if the incentive is there they will do it, but we must not confuse financial liability with the Government’s identity card scheme or passports.

Another issue that sometimes comes up is counting people in and out of the country. This is the great dream of the UK Border Agency—the passenger name record. We count everyone in and we count everyone out, and we prove who went in and who went out. Some people say that we need the identity card for that, but so what? At the end of the year we tot it all up and find that 100,000 people have stayed. We might even know who they are or what they are called because they have foreign passports. How do we find them without having to do a cordon and search and without rounding them up? How do we then get them back home? Where will we keep them in the mean time? We know all these problems, and it is not realistic. Maybe we could save a bit of money on not counting people in and out of the country. It is a pretty pointless exercise; we get very gloomy when we see how many people want to stay. If incentives are in the right place, people will go abroad while good people will stay and help the economy. We do not want to discourage people from moving across borders. That issue is for a debate on immigration at a later time, but it crosses over into the identity debate.

Like others, I have reservations about the duplication of the provisions of the Fraud Act 2006 on possessing identity documents that belong to other people. We must be very careful that we do not simply create more powers. There is great confusion between the different Acts, and those powers will get misused if there is any ambiguity at all. I am not sure how necessary they are.

I think that we should probably offer the £30 refund to all people who have cards already—it would be a good PR exercise. I would advise a lot of them not to return the cards but to keep them; they will be worth some money one day as a collector’s item—unless, of course, it is illegal under the fraud provisions.

My Lords, I now see the gap and hope that I will be permitted to step into it.

I opposed the ID card policy from the outset, seeing it as an affront to fundamental liberties in this country. So I am glad that the coalition Government have acted so expeditiously to abolish the scheme. I have always made it clear that I do not have any problem about enhancing the information contained within a passport for border control purposes. However, I objected to the ID card scheme and I particularly objected to the central multipurpose database. That is what makes it different from other identity cards; it is a sleight of hand when people say, “We in this House have identity cards for other purposes”. They are very different from the one that connects you to that all-powerful central database.

The ID card was presented very differently from the way in which it is now being presented. It was presented as a tool of empowerment and as a voluntary programme. I say to my noble friend Lord Brett that I have no false memory syndrome about this. It is too close to my heart. I remember only too well that ID cards were presented as the answer to a maiden’s prayer when it came to terrorism, crime, illegal immigration and abuse of the benefits system. We all pointed out that they would not be capable of doing any of that successfully. I also remember that they were going to be compulsory. Even after all the efforts in this House and the campaigning outside, and although our Government conceded to voluntariness, I always feared that, given the direction of travel, compulsory ID cards were waiting for us somewhere down the line.

The reason for my objection is that I believe ID cards create a different kind of relationship between the citizen and the state. That is what we have to hold on to. Inevitably, it would have meant the police being able to require a person to produce their identification on the street, which goes against the way in which our nation has worked. We have a common-law system. It is a great source of pride to us all that we are able to say when we are brought before a court: “Prove it”. When stopped by the police, we are able to say: “Do you have reasonable cause to stop me?”. Those things make for the British characteristic of not being supine or a compliant citizen, but somebody who knows who they are. We must always remind ourselves that the state is here at our behest; we are not here at the behest of the state. The ID card system was taking us down a very unfortunate road.

I say briefly that, while there may be an old guard on these Labour Benches that cannot accept that in government our party made some mistakes, happily there is a new generation now in leadership which takes a very different view.

My Lords, I am not sure where I would categorise myself in my noble friend’s interesting description of the opposition Front Bench. We have certainly had an interesting debate on the Second Reading of the Bill. As my noble friend Lord Bach said, we recognise that the proposals before us were contained in both the Conservative and the Liberal Democrat manifestos. We certainly do not seek to oppose the Bill. However, as we have heard from this debate on Second Reading, there are several important matters that we will want to scrutinise thoroughly when we move into Committee.

First, I will respond to the remarks of the noble Baroness, Lady Neville-Jones, and others, in suggesting that the previous Government’s approach to ID cards indicated what has been described as a cavalier approach to the rights of the citizen. My party well understands the importance of the individual liberty of our citizens. It was the previous Government who signed up to the ECHR. We passed a series of equality Bills which added to the individual rights of our citizens. We brought forward freedom of information and data protection legislation. We were and are committed to the individual rights of our citizens. We also understand the responsibility of government to protect the security of citizens. As my noble friend Lord Bach suggested, we saw ID cards as a potentially valuable contribution to our national security. The noble Baroness, Lady Neville-Jones, is extremely experienced in these matters. At one time she, too, saw the advantages of ID cards. Will she explain, when she responds, how she thinks the Government can effectively protect identity in today’s circumstances?

I also suggest that several speakers have rather overlooked some of the benefits of the voluntary ID card scheme as a convenient, reasonable and affordable way for citizens to assert their identity, as well as being a lightweight and easy-to-use valid travel document in Europe. I should have thought that that is an answer to the noble Lord, Lord Selsdon—on the practicalities at least, if not on the substantive question that he put to the Minister. I look forward to hearing the response.

My noble friend Lord Maxton clearly described the divide between those who carry ID information and those who do not. I think he was suggesting that the technological gap matches the wealth gap in our nation. It is unfair to scrap the cards immediately with no capacity to offer compensation. A number of noble Lords have referred to that matter, and it was also discussed at length in the debate on the Bill in the other place. On Report, the Minister, Mr Damian Green, said that offering compensation or credit to the value of £30 against the purchase of a new passport would be unfair to taxpayers. One has to set that alongside the answer given by the Home Secretary, Mrs Theresa May, who said:

“People knew well before the election what would happen if a Conservative Government were elected”.—[Official Report, Commons, 9/6/10; col. 346.]

That will not do. Is it really suggested that members of the public should plough through each party’s election manifesto, determine that their investment is at risk if a certain party is elected and estimate which party is likely to be elected? I have the three manifestos with me. I would not describe them as a good read but they are weighty documents. Are we seriously suggesting that members of the public have to plough through them? I do not think so. As someone who has lost a few votes in your Lordships' House, I say to the Minister that if ever an issue united the House against her, I suspect that this is it. I should have thought that this matter warrants further consideration between now and Report.

I ask the Minister to clarify the costs. We are told that £835 million will be saved. However, if you delve into the facts of the case, you discover that this figure arises from a total cost figure and that it was planned to recover the costs through future fees to ID card purchasers. My reading of the documentation is that after year three there will be no benefit to the taxpayer and that the actual savings are far less than £835 million. I ask the noble Baroness to clarify that point further.

I should also like the noble Baroness to reassure me about the destruction of the data on the national identity register. Whatever the debate about that register, the fact is that Mr Damian Green said in the other place that destruction would take place—indeed, I think that the Bill makes it clear—

“within two months of Royal Assent”.—[Official Report, Commons, 15/9/10; col. 946.]

I should like to hear from the Minister exactly how that destruction will take place. It is right that the House should have that information. I do not think that the matter is as simple as it might sound. I should also like to know what independent verification there will be so that Parliament can be assured that the data have indeed been destroyed. My understanding is that the identity register is on two separate databases and that each database also contains other information for other purposes which will need to be retained. How the information will be deleted and how this process will interact with other material stored on the relevant databases are points of detail which merit further clarification.

I noted what the noble Baroness had to say regarding biometric passports. She said that the UK’s progress towards biometric passports of a standard comparable to those in the rest of the EU and, increasingly, other countries is clearly in jeopardy. The Government’s decision to scrap the NIR and halt development of the UK passport will surely leave British citizens out of step with much of the rest of the world. Is that the case? What are the implications of that in the longer term? As a result, will it not be harder for British citizens to travel with ease? The British passport is one of the most respected documents in the world. Can the noble Baroness reassure me that this policy will not put that at risk? I thought that my noble friend Lord Maxton spoke eloquently about that issue.

As I and my noble friends Lord Bach and Lord Brett have said, we will not oppose the Bill. However, we will join other noble Lords in carefully scrutinising this legislation, and we will certainly press the case for compensation for current holders.

My Lords, we have had an interesting and wide-ranging debate. My first point is that the various speeches have shown a philosophical divide in the House between those who think that it is a good idea for the state to amass information about citizens and that this is somehow empowering, and those who think that it is a good idea for the state to have as little as is necessary for the discharge of its duties and functions. That is one of the things that divide us regarding the national register and it lies at the heart of the way in which this scheme was constructed.

The Benches opposite challenged me personally on why I had changed my view. I will tell them. My reasons were expressed more eloquently than I can put them by the noble Lord, Lord Shipley, who raised all the charges that one could about the flaws in the system, and he was right. This national register would have contained up to 50 items about individuals. That is a very large amount of information and would have included ephemeral details such as one’s address. A constant process of change would need to have taken place and there would have been a penalty for failing to provide the information.

Some noble Lords mentioned the view of Microsoft. It was Jerry Fishenden, an expert in this area, who said that bringing together in a single place all this information about the citizens of this country was a great honey pot and that the likelihood of it being invulnerable to attack and hacking was zero. Those were the moments when I began to have very serious doubts about the wisdom of this scheme, and the more I saw of it the less I liked it. It is partly for practical, but also for many philosophical, reasons that I concluded that the scheme was a bad idea.

The history of the way in which the previous Government’s thinking evolved was spelt out by other Members of the House, and I will not go into that again. Various arguments were put forward and eventually the scheme turned from being a good security precaution into being a good entitlement route. Part of the difficulty shown in defending this was the fact that the previous Government had constantly to change their justification for this extremely expensive scheme. I repeat that it is extremely expensive and it is quite right to say that it was to be the only one of its kind. One could have imagined that every time a swipe was made and the register had to incorporate a transaction—because it was going to be used in that fashion—the number of transactions would undoubtedly have crashed the system.

The design had many flaws. It also has limited validity and limited use because, as was rightly pointed out, the area of online fraud and losses, which increasingly is where identity authentication is needed and where fraud is taking place, would not have been helped at all by the existence of this register. So the design did not deal with one of the main areas where identity authentication was needed.

The noble Lord opposite asked how we would deal with identity issues. I entirely take the point that they are very serious and that further work and protection are needed. However, I am quite clear that the national register as it was constructed, with its associated card, was not the route to go down to get that degree of identity assurance.

Some noble Lords also raised the question of whether we would retain any of the technology that has been developed in relation to second-generation passports. As I said, the Government take the view that it is not necessary for the security of the British travel document, which we all agree is of high-quality, that it should incorporate second biometric data. Most Schengen countries are going down the route of asking for fingerprints. We are not going to do that and a large number of other countries are not going to, either. We do not take the view that there will be any barrier to the acceptability of our document. We also believe that other ways of increasing the security of the biometric data such as facial imaging, which we can certainly do at much less cost, are the way to go. Having said that, we will retain the technology in the Identity and Passport Service to ensure that, should we need to use it or should it be useful, we will have it available. However, we do not consider that it is needed as things stand.

Several noble Lords asked about how the destruction of information would be done and whether we could be sure that it would be done. It is a very important issue. As has been said, all biometric data and the vast majority of the personal data will be destroyed within two months of enactment. We have shared our approach with the Information Commissioner's Office, which is satisfied that all areas have been covered. The data destruction will be handled in accordance with the decommissioning guidance issued by the Cabinet Office and by the information assurance arm of GCHQ, the CESG. I believe that I am right in saying also that my honourable friend the Immigration Minister in the other place said that he would report to the House. I, too, am very happy to report to this House on the destruction process. We entirely agree that if we say we are going to do that, the public must be assured that it is happening. That will be a systematic process. We will not allow data that should no longer be legally held to be held by the Government.

Some noble Lords also raised the question of the power under the Act to sell data. Perhaps I may clarify that. Section 12 of the Act provides for the Identity and Passport Service to provide information to third parties for verification purposes. This permits the Secretary of State, under that power, to supply information to a person registered under the Act. The provision of this information requires the consent of the individual: at least that is a relief. For example, they may be applying for goods and services, which is why the information about them is required. Section 35 allows for a fee to be charged for the application of this provision, so one can see the intention potentially to make this a profit-making possibility for the Government. Our anxiety would have been about whether the information being provided was always accurate.

Some noble Lords asked whether there was an anomaly between our desire and intention to abolish the identity cards system and register and our continuation of biometric permits for foreign workers in this country. In fact, the latter is an EU requirement and, obviously, we undertake to continue to maintain our EU obligations. These are residence permits; they are not identity documents.

On costings, I cannot supply an immediate answer to the question raised by the noble Lord opposite. Our figures are very different, but I will write to him on that subject, as I realise that it is important to have clarity.

The point is that most of the long-term cost would have been met by people paying the cost of the card. It is rather inaccurate to give a globalised figure and to say that that is the total cost.

The fact is that there is significant sunk investment and there would have been future costs if we had operated the system. Those future costs will now not be incurred.

Here is more precision on the point that the noble Lord has just raised. In October 2009, the cost report provided the figure of £835 million for future investment. Noble Lords will be aware that fewer than 15,000 cards have been issued, which has been against an investment of £292 million. The difficulty is that one cannot be as confident as the noble Lord that the costs would be recouped from fees. Irrespective and independent of the attitude of the Opposition at the time, which I am sure acted as a dampener on the general public’s enthusiasm to purchase a card, it was clear that the public were voting with their feet. A total of 12,000 cards is not a large number of applicants.

The point has been made about the restricted areas—one in Manchester and one in London—but there was also a general inquiry register, to which members of the public from other parts of the country could apply so that they could have access to their cards when the cards became available. That is a rather different issue and a rather different figure.

I hope that the noble Lord will acknowledge that, at the end of the day, this was not going down a bomb.

If the question of refunds is the only complaint that the Opposition can find, that shows that there is not a great deal to object to in the legislation. Several points were raised. I was asked about refunds and whether we could supply discounts against other documents or at least allow the documents to have their full-life validity. As I pointed out, full-life validity would mean keeping the system open, which would probably cost an extra £60 million to £80 million. We simply do not think that that is justified or sensible. Noble Lords have said that this would involve a small sum of money, but we believe that £400,000 can be spent to the benefit of the general public in a rather more useful fashion than on a refund of £30, which is rather less than probably most people pay for a monthly subscription to Sky. We have to have a sense of proportion about this.

One or two noble Lords said that they found the Bill unnecessarily complex. In fact, when one gets into the detail of the Bill, there are quite a large number of complexities to unwind. However, I am happy to talk to them about the issues that they have raised and, if the Bill can be simplified, I shall be most delighted to do so.

A point about fraud was raised. The National Fraud Authority and the National Fraud Intelligence Bureau have produced a strategic threat assessment of the harm impact of identity crime—a matter with which I think we in the House are all concerned. It will lead to an action plan, which will be overseen by the Home Office. We have started work on it and the first meetings have begun to take place. I am personally very interested in this subject. The House probably shares the view that identity, and its protection, is something that we have to get right. It relates to issues such as how we combat crime that takes place through cybernetworks, so I do not underestimate the importance of getting this right. As I said earlier, we do not believe that the national register is the way to tackle it. However, we have a great concern about the need to protect victims of crime relating to people’s identities having been swiped.

In conclusion, we believe that the Bill is in the public interest and we are pleased to have brought it forward this soon. We believe it is right to start getting the balance that we think should pertain between the citizen and the state more where we would like to see it, and of course other legislation is coming forward which will swing further in the direction of the liberty of the citizen. I ask the House to give the Bill a Second Reading.

My Lords, before the Minister sits down, I asked two specific questions. If she does not have the answers to them now, will she assure me that she will write to me with them?

The noble Countess is quite right. I do indeed have some information and apologise for not having given it. I think that one of her questions related to the UKBA. She asked about provisions within Sections 5 to 15 of the 2007 Act. We comply with the EU requirements and we have complied ahead of the 2012 deadline. I realise that the noble Countess raised one or two other aspects, but I am not in a position to answer them at the moment and so shall write to her.

Before my noble friend sits down, can she help me? Would she be willing to share with the House her full name and her legal name?

I know a trick question when I see one. I shall certainly share my name as registered on my birth certificate. It is Lilian Pauline Neville-Jones.

Bill read a second time and committed to a Grand Committee.


Question for Short Debate

Tabled By

To ask Her Majesty’s Government whether they will introduce legislation to ensure that financial provision on divorce is determined on fair and settled principles.

My Lords, it is fortunate that I am asking this Question of the Government today about financial provision. Not only is this an issue of great importance that has not been addressed by Parliament for some 40 years but on this very day it has also been announced by the family law review project that, in an effort to save legal aid and reduce antagonism between parents, mediation will have to be attempted before parties are enabled to litigate about their children after divorce. One of my themes is that mediation and changes to procedure to reduce litigation cannot succeed if the substantive law is uncertain and unfair, as I shall explain. Moreover, we will receive very shortly the judgment of the Supreme Court in its first case on the validity of prenuptial contracts. This, too, is highly significant as a method of reducing conflict on divorce.

Your Lordships may wonder why I am addressing this issue. It is because of a lifetime spent teaching and lecturing on divorce law and being in receipt of the views of the many who write to me about it whenever I speak in public. If, by any chance, your Lordships regard some of my views as idiosyncratic, that is the privilege of a Cross-Bencher. I assure your Lordships that I have a solution to the problems that I outline, one which is tried and tested, and widespread. I emphasise that I am speaking not in my capacity as chairman of the Bar Standards Board but in a purely personal and academic capacity.

London’s reputation as the divorce capital of the world is deserved. It has prompted a surge in divorce tourism such that one in six divorces has an international element because of the high-profile financial settlements among wealthy divorcing couples where generous awards are made to ex-wives. However, the majority of families going through the courts to settle their financial disputes on separation face very different challenges in the quest for fairness. English law relating to financial provision on divorce has proved to be unfair, uncertain and expensive. It is based on out-of-date stereotypes. It is out of step with the laws of other European countries; it is out of step with divorce law itself; and it has remained largely unrevised by Parliament for decades. Its deficiencies are obstacles to a more consensual and cheaper resolution of financial issues on divorce. This is especially important and damaging in its effect on the welfare of children after divorce. Moreover, reform would save legal aid and costs.

Successive judgments in the House of Lords and the Supreme Court have reflected the judicial view of changes in family life but have brought about confusion in the law and in principle. This makes firm legal advice leading up to settlement almost impossible in wealthy cases and racks up the cost of litigation. A case called White v White was thought to have pointed towards a yardstick of equality of division but that has moved away again. Subsequent judgments have emphasised the themes of needs, compensation and sharing, although it remains unclear how they interrelate with each other and with the statute. All the circumstances and all the assets are available for consideration but some recent cases have suggested that there may be a category of assets that should remain with one spouse in certain conditions. No wonder that spouses resort to illegal seizure of financial documents from the other—a practice castigated in the Imerman judgment. Yet how else might some wives find out what their husbands earn? Our judges mean well but the price of flexibility and micromanagement is delay, uncertainty and expense.

There are cases where the costs of litigation have exceeded the value of the assets in dispute. Mr and Mrs White spent £500,000 in costs to settle the ownership of £1.5 million. Mr Miller is taking the Government to the European Court of Human Rights on the ground that divorce laws are so uncertain that they infringe his human rights. The statutory principle of a clean break between spouses has faded. There are cases when spouses come back to court after a quarter of a century of living apart to seek a change in the maintenance level. Quarrels can never be put to bed. There is enormous public anger, especially among those who have been involved in divorce. They find this state of affairs unjust and immoral. They do not see why maintenance continues to be paid to an ex-wife who is pregnant by, or living with, another man, or why conduct is not taken into account. The theory of divorce is that it arises from irretrievable breakdown of the relationship without fault but in reality this is not how it is seen in most cases by the parties.

Well-off wives—a new category—especially those with high earnings of their own, do not see why they should have to transfer their assets to an ex-husband whom they regard as having treated them badly. Let me quote from one or two of the many letters that I received after lecturing on this. One is from a divorcing wife:

“the law is supporting his efforts to take away my home”,

and savings in order to support him, his girlfriend and child.

One is from an ex-husband:

“a complete travesty of natural justice being foisted on me by the present law”.

Poor ex-wives will hardly get by and maintenance for children is a vital issue for which, unfortunately, there is no time this evening. The law rewards most significantly the non-working wife of a wealthy man—almost regardless of the length of the marriage, children and contribution. The message given out to young women is that their life’s success has to be tied to finding—and, perhaps, divorcing—a man of means, rather than working to support themselves. Awards worth millions of pounds are made to the ex-wives of pop singers and footballers. Many divorce awards are sums greater than a working woman will earn in a lifetime of salaried employment.

The law does not even recognise prenuptial agreements as legally binding. The judgment on that in the Granatino case is imminent, but at the moment we have the worst of all worlds. It has been hinted that they might be binding, but a court can only decide agreement by agreement whether that is so or not, so more litigation may ensue in determining whether the contract is to be upheld.

It is high time that English spouses, like those on the continent of Europe, were treated as adults, able to bring certainty to their financial affairs on divorce and avoid litigation by deciding for themselves what to do. It would be ironic if our law refused to recognise prenuptial contracts entered into voluntarily while we are considering imposing a matrimonial financial regime on cohabitants who have not consented to it. The law is in any case not fit to apply as it stands to cohabitants.

It is time to move to a European law for the division of matrimonial assets, commonly known as community of property. The courts of most European states have less flexibility. Awards are lower and there is more certainty because the principles have been laid down in advance and agreed to. Most European and some North American states have community of property schemes that apply to divide post-maritally acquired property equally on separation. Assets owned before marriage are excluded. Couples may agree to keep their property separate if they prefer. Maintenance awards are lower because it is assumed that wives will work, and inheritances remain with the inheritor. However, the UK is resisting the moves to harmonise European matrimonial property law. The rest of Europe seems to take the hard-won principles of feminism and equality rather more seriously than we do. Even in Scotland, there is a very different approach. Maintenance awards are normally for three years only, unlike lifetime awards in England, and the matrimonial property is split.

The Law Commission tried to find consensus, with attempts at formulating a law about sharing homes and another about cohabitation, but has failed, in that there is no national agreement about what to do. The Government have to take the initiative on this for the sake of children and costs. They should legislate for the introduction of the European system of community property and the validity of contracts about these issues made between spouses and other adults. That would also have the benefit of removing the temptation for European divorcees to come to England for dispute resolution in our courts. It is not a perfect solution; it is a blunt instrument, which will not universally be seen as fair; but the advantages outweigh the disadvantages, and no better solution has been proposed. It would save money and reflect real equality between husbands and wives.

It is time for the Government to allow time for debate to face up to the resolution of modern ways of living in families and easy divorce. It is time to call for reform, not by judges struggling to cope, but by our legislators.

My Lords, I speak with a large amount of trepidation since I have very little knowledge and no expertise on the subject. I reflect that for many people caught up in the experience, divorce is something that they did not want or expect and that they are unwilling participants in the process. I should like to pay tribute to the noble Baroness, Lady Deech, whose words on the subject resonate most with me. The disagreements on the merits of differing contentions reflect the uncertainty surrounding financial dispute resolution—FDR—as legal teams, in seeking to provide advice, are compromised between interpretations of recent cases. It is an unsatisfactory state of affairs. I should like to support and give oxygen to the noble Baroness’s voice and to thank her for her perseverance in raising this matter, which affects, sadly, far too many of us.

I learn in today’s Telegraph that last year there was a 16 per cent increase in divorce. I also support the noble Baroness’s call for legislation. Surely it is for Parliament to pass legislation and to set the framework for the judiciary to interpret. I am sure that there are judges who are uncomfortable with the present position. For a person not to know to any degree where a case will settle or to be subject to the lottery of what view the judge attached to the case will take places unnecessary strain and leads to participants taking extreme positions in an endeavour to tilt the landscape. It will be difficult to define fairness in the present contentious climate. Fairness is an overclaimed parameter today. It is one of those motherhood and apple pie attributes against which no one can contend. I am reminded of the Bob Dylan song of my youth, “With God on Our Side”.

That London is described as the divorce capital underlines the fact that the UK is out of step. It draws one side to precipitous action rather than reconciliation and inevitably therefore to higher cost. I am left to reflect that divorce is seen by most high-value cases as a one-way bet for wives and that invariably the husband better agree to everything as he is only going to pay anyway.

I shall speak to only one feature: prenuptial agreements. This, more than any other feature, would be instrumental in dissipating the heat in FDR, would immensely simplify the process and largely negate the need to value assets. Thus it would reduce costs. It should not be necessary to have to await the slow progress of disputed cases setting case law to correct this anomaly. I will take my own advice and refrain from voicing further thoughts on what is indisputably the most dramatic aspect of life for far too many today.

My Lords, I rise to give strong support to the case for reform so well presented by my noble friend Lady Deech. For the past 20 years or more I, and no doubt pretty much everyone I know, have watched friends, colleagues and relatives go through the divorce process, spending tens of thousands of pounds and more on legal fees and ending up with a settlement that seemed grossly unfair to one side or the other. The law on divorce, now 40 years old, was drafted when women typically remained at home to look after the children for many years and when the male parent had overwhelming power over the financial resources of the family. I ran the campaign for the Child Poverty Action Group in 1971 as part of a national debate that resulted in the establishment of child benefit. At that time I received more than 2,000 letters from women of all social classes, including the wives of doctors and vicars—the most extraordinary people, I have to say; I was very surprised by those letters—and many others who told me that the family allowance, as it was then, was the only money on which they could completely rely. No wonder that the divorce law passed in 1973 was based on the assumption that women were the helpless victims.

The world today is very different. It is now assumed that women work. The welfare benefits legislation passed this year assumes that mothers on benefits begin planning their return to work when their youngest baby reaches the age of one. Work-related interviews, followed by work-related activities, all prepare mothers for the world of work as soon as they can turn around after the birth of a child. I and other noble Lords argued at the time that for all sorts of reasons—the ill health of young children, disability and so on—the legislation expected mothers to return to work too soon. I still hold to that view. From the point of view of this debate, the essential point is that the benefits regime makes clear that our British state no longer expects mothers to remain at home once children are settled even in nursery.

As the noble Baroness, Lady Deech, explained so well, Europe and Scotland now have divorce laws fit for the 21st century. These laws are based on some very important principles. Probably the most important point is that the principles should be clearly elaborated and established so that both sides in a marriage, right from the start, can anticipate what a divorce would mean for them. The fair point has been made that there are young women today who literally see that the best thing to do is to marry a very rich man. Those women will undoubtedly end up in a divorce court.

In my view, the principles should include the principle that only the property acquired during the marriage should be divided and that inherited wealth should not be included, as the noble Baroness, Lady Deech, has said. Future earning streams should not be taken for granted; lifetime awards are unfair and unacceptable and, in my experience, have led to men, fathers, living in tiny bedsits while they fund the home of their ex-wife. This cannot be right. That both men and women have earning power is an essential assumption that should lie behind these laws. This assumption lies behind the case for time-limited awards. As has already been mentioned, Scottish awards are for three years. Any award should support the family at least until a child reaches and is settled in school. However, that is very different from a lifetime award. Both men and women can be assumed to earn when a child is settled in school. I feel very strongly that the conduct of the parties will continue not to be taken into account. This is essential to avoid the evils of allegations and counter-allegations forming the basis of lengthy and sordid court hearings.

I welcome the plans to overhaul family justice and to move to a system where divorce will be substantially resolved through mediation or, in more complex cases, through “court-lite” shorter and simpler hearings. The drive to reduce the £1.6 billion cost of the family justice system will undoubtedly drive reform. I appeal to the Minister to press for a reform of the law on financial provision in divorce at the same time as the reform of divorce proceedings.

Finally, on the matter of prenuptial agreements, which again has already been mentioned, the Appeal Court judges made plain their view that the existing law under which prenuptial agreements are not enforceable is patronising and outdated. This country surely must come into line with Europe in providing for prenuptial agreements to be enforceable. I would be grateful for the Minister’s views on the need for reform of the law on financial provision in divorce, and on the particular point on prenuptial agreements.

My Lords, I am most grateful to the noble Baroness for this debate.

Love has always been recognised as the most costly emotion, and traditionally it has been valued in terms of personal commitment rather than economic obituaries.

“How priceless is your unfailing love”,

the psalmist wrote of the God whose love is so great that it “reaches to the skies”. The recent valuing of love—or, rather, its failure—in multimillion pound divorce settlements, in which a significant number of those listed had earned their fortunes in the entertainment industries, ranged from the reputed £7.5 million to £12.5 million paid by one celebrity when their 22 year-old marriage foundered, to the £75.5 million an American rock star settled on his former wife. When a famous film director paid his former wife £50 million, he was believed to retain a further £50 million for day-to-day necessities.

This surely goes to the heart of our debate today, for I understand that this settlement began as a prenuptial arrangement. The cynic could argue that failure was costed into the price of this couple’s original devotion. Such settlements, no doubt much loved by legal and financial professionals who profit from them, are in danger of reducing marriage to the economic bargaining of historic marriage contracts and of cheapening sacred commitments into balance sheets. Let us override cynicism with Christian realism. Of course we encounter a strong objection to the tenor of such requested legislation, for in a Christian understanding of marriage such prenuptials weaken and dilute our marriage vows of lifelong commitment, where sacrificial love forms the bedrock and the core. The established church’s marriage service includes this moving, mutual commitment:

“All that I am I give to you, and all that I have I share with you”.

This states the deepest possible giving and gifting, with nothing held back in personhood or economics. These commitments, made before God and all those attending a Christian wedding service, look confidently towards a new, positive and progressive relationship in the unfolding history of human love. There is no suggestion here of an economic breakdown kit, poised for use if dreams fade or demands surmount expectations.

But let us be clear: this is not to deny that, tragically, many marriages fail and that, as the noble Baroness requests, “fair and settled principles” should safeguard legally required settlements. Nor is it to deny claims that marriage may be limited among older people unwilling to formalise relationships without agreements safeguarding responsibilities to family members from former marriages.

But such considerations, valid as they are, can also detract from a more demanding duty of this House: that of supporting the primacy of marriage rather than legislating for its dilution, and leading our nation in reasserting positive principles rather than writing provision for failure into a sacred institution created for lifelong blessing and support.

Perhaps the problem with this requested legislation is that, like much current policy and resources, it concentrates on the ending of relationships rather than on supportive foundations for their future. Like the prenuptial agreement, it raises the spectre of relationship disease, with all the consequent emotional and economic costs of family courts, mediation, child support and associated issues, rather than hoping, planning and praying for the emotional health of marriage and offering significant support.

In a society deeply wounded by divorce, the balance of resources should be devoted to relationship education and marriage preparation, and to supportive healthcare for marriage rather than ambulance-chasing after divorce settlements. If more attention was given to this area of our nation's life, we would not have to spend so much time debating what happens when relationships end, and our society would be stronger and more stable as a result.

Is the right reverend Prelate aware that in many Catholic countries in Europe, where the divorce rates are much lower than they are in this country, the sort of system that I have recommended prevails? I refer to France, Italy, Spain and so on. They have much lower divorce rates, but they also have the system that I have proposed, which might support rather than diminish the institution.

My Lords, I am no lawyer, and I really do not know much about divorce law, but I have been through a divorce, which has led me to observe what happens in the courts. It was a long time ago, before the case of White v White in 2000, but it led me to think about how the law treats marriages and what we might do about it. I have a great deal of sympathy with the ideas expressed by the noble Baroness, Lady Deech, on how we might move forwards.

On “Desert Island Discs” recently, Kirsty Young asked Fay Weldon how she felt when her husband of 30 years left, and she said,

“I thought I would go mad”.

That captured for me the exact sense of disorientation, disbelief, anguish and despair that I felt when it happened to me—an infinitely greater loss than bereavement, it seemed to me, since you lose your entire notion of who you have been for 50 years. The rather disdainful approach that I had previously taken in a secure marriage, as I thought it, to people whose marriages had collapsed naturally disappeared very quickly. If I can talk about this subject now with equanimity, it is because it all happened more than 13 years ago and I have had the good fortune to marry again.

I sought out the very best divorce lawyer I could, as did my husband. He was a businessman, and our affairs were very complicated with businesses and homes abroad as well as here. I was the joint owner of some of them and not others, so noble Lords can imagine that it was a very difficult matter to tease out the ownership of these various possessions. But we were both very determined from the outset that we would remain close friends and stay close to each other’s families. Did the lawyers help? They were the very best, nicest people and were even personal friends with each other, but several weeks down the line the adversarial system had us both with barristers lined up and cocked at the ready, ready for the courts to proceed. We were both getting more desperate, not less. We had a chat about it and said that we thought we could probably do a better job ourselves, so we went off to the pub and went line by line down all our assets and decided how to divvy them up. Some of the assets, of course, had more financial value but less emotional value, while others had more emotional value and less financial value. We simply went back and sent a joint letter to both our solicitors saying, “Please get on with that—that is it, please”. We were not very popular with our solicitors, but I know that any more fighting would have destroyed our future relationship. Having dealt with the separation agreement to our mutual satisfaction, we could then start to deal with the rest.

I realise that many couples will not be able to negotiate in this way. Often one spouse is much stronger than another and sometimes there are few feelings left for the other person. Anger turns to revulsion very quickly. People will behave badly if they can get away with it, and men and women are equally to blame for bad behaviour. Yet I believe that if we had had a skilled mediator in place, we could have solved many of these difficulties from the outset. I particularly liked the introduction in 2003 of the collaborative legal practice arrangements, where people sit down with their lawyers, outside of court, and do it together in a low-key way, still having joint conversations and avoiding the expensive court battles. It seems to me that people ought to go through that first, as a sort of obligatory phase.

Where children are involved, it seems to me that an adversarial court situation is, frankly, bonkers. It is expensive, detrimental to the health of children and leaves scars between the parents that are unlikely ever to heal, meaning that children, in effect, often lose one parent entirely. Frankly, I do not see why legal aid should be available to allow unhappy people to continue mutual squabbling over the possession of their children—and how often have we seen that?

The noble Baroness, Lady Meacher, and I share an office with the noble Baroness, Lady Howarth, who is the chair of CAFCASS. The horrific stories that she tells of the sort of things that children are subjected to in courts while being fought over makes your hair stand on end. As one American lawyer said, the parents declare war and then draft the children. Disputes should be settled out of court through mediation and dispute resolution by non-adversarial professionals. We have an edifice of family courts whose raison d'être we should question. I understand that 95 per cent of divorces in the US are now completed through mediation and/or legal collaboration. Surely, we should aim for that here.

However, what about the very wealthy and the underlying principles? It seems to me that the basic premise of White v White in 2000 is right. The law on the needs basis had not kept up with changes in society. In most cases, the courts were trying to satisfy the needs of both parties with limited resources. The noble and learned Lord, Lord Nicholls of Birkenhead, emphasised that there could no longer be gender discrimination when determining the allocation of ancillary relief. He said,

“If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner or the child-carer”.

The House of Lords also recognised that, by being at home and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills. To a great degree, that is still so. The noble and learned Lord, Lord Nicholls, also said that the judge,

“would always be well advised to check his tentative views against the yardstick of equality of division”,

and that it seemed to him that equality should not be departed from, apart from with good reason. All of that seems absolutely right.

What do we do about foolish men with large fortunes who get hitched to gold-diggers, then find themselves divorced a few years later? My heart does not bleed for them very much; no, men and women will always be fools in love and there is surely scope within the principles of White v White for adjustments to be made. As Simon Cowell—he is the one on the other side when the rest of us are watching “Strictly Come Dancing”—recently said:

“Marriage is an outdated contract … I don't believe in marriage, certainly not in this business”—

I suppose that he means show business. He said:

“The truth is that you get married and in a year or two they clean you out”,

so he is wisely remaining single for now. He is engaged instead, which seems to be an end point rather than a plan to do anything else in the future.

I am rather ambivalent. I am very attracted to the right reverend Prelate’s view that once you marry someone, you are forming a partnership more than a temporary arrangement. You are making a life and committing yourself to that person. On the other hand, we must recognise that there is a force to be had in saying that in the modern era, having some sort of premarital arrangements or commitment would probably be more sensible. So the answer is for us all to have prenuptial agreements when we embark on the journey, however wealthy or impoverished we start out. Making them legal would at least be a partial step towards the sort of reform that the noble Baroness, Lady Deech, is advocating.

My final point is about the no-fault divorce system. It must be sort of right; we cannot expect the courts to weigh up all the various causes and hurts between individuals. Rather than a no-fault divorce, though, I would like to see the notion that it is everyone’s fault—in other words, that the two people have somehow contributed to this failure overall, and that ought to be recognised when people are going before mediation and the collaborative legal system.

My solution for the moment is a universally legally binding prenuptial agreement, but I still rather like the idea that we have to take on the notion that when we marry, we do so for life.

My Lords, having heard the lucid and persuasive speech of the noble Baroness, Lady Deech, I wanted to take the opportunity to rise in support of what she said. We all know that the divorce law at present is complete chaos. From time to time, what has appeared to emerge from the jurisprudence as a guiding principle, like the 50:50 rule or the clean-break rule, has for some reason subsequently been set aside at the next judicial decision, so there is simply no clarity. The present system could hardly be better engineered if it were designed to maximise uncertainty and, therefore, legal costs. Some cynics would say that there is a certain category of humanity that would be very attracted to a model of that kind, but far be it from me to make such a comment myself.

The present situation with general divorce law seems to be difficult. The solution must be, as the noble Baroness has suggested, to look for some guiding principle. Perhaps we should look for that guiding principle in the Roman law examples on the Continent. I think I am right in saying that in some Continental jurisdictions, parties have a choice of regime: they can choose communauté de biens, which rather corresponds to what the right reverend Prelate was talking about a moment ago—“Everything I have, I give you”—or séparation de biens. In Scotland, we have an example of a Roman law jurisdiction that has adopted the séparation de biens principle, which is that when you enter into a marriage you keep separate everything that you bring to it, and the only assets or revenues that can subsequently be divided are those that have been accumulated since the marriage. That needs to be looked at; I understand that it is a model that works reasonably well north of the Border. I do not want to decide today what the solution should be, though; I merely urge that it is our responsibility to find one.

With regard to prenuptial agreements, I congratulate the noble Baroness on her brilliant timing: we are expecting a judgment this week from the Supreme Court on this matter. The situation with regard to such agreements is equally confused and equally unacceptable: we have a divorce law that takes one view about prenuptial agreements but which is overridden by the Appeal Court, and then we might have a third view from the Supreme Court. That is not the ideal model of the rule of law that we in this country are committed to. Some years ago in the House of Commons I introduced a Private Member’s Bill that would have given legal force to prenuptial agreements, and as a result of today’s debate I am inspired to see if I cannot relaunch an initiative of that kind with similarly minded colleagues in this House.

It has been overwhelmingly demonstrated by today’s debate that it would be a clear abdication by Parliament not to look at this matter again. After all, we are responsible if a law is chaotic, if the jurisprudence is unclear and if judges find it impossible to give judgments that have any degree of consistency or continuity or that would give the jurisprudence some degree of predictability and understandability. That is clearly the case, and that is when the legislature needs to intervene. It is why we have a legislature; it is why we come to this place and why people go to the House of Commons. I hope that before long it will be possible for us to take another look at this, to examine it in the round and to give it the deep attention that the subject deserves. I hope to do a good day’s work by Parliament in that context as a result.

My Lords, it is not only this House that should be grateful to the noble Baroness, Lady Deech, for raising this subject today, but society in general. This debate is not just interesting, it is significant, because of where it stands in relation to a campaign for reform that now has the push and impetus to make it, in my view, unstoppable. The timing of this debate is crucial in seeing this forward.

I speak with the experience of having been legal aid Minister in the Ministry of Justice until five or six months ago, where obviously this issue, in one particular form, came across my desk many times. I was convinced by the time I left that post that there was need for reform, and considerable reform, of our system of divorce in this country. The latest available figures show that in the United Kingdom, more than 136,000 people were divorced in 2008. That is a declining number in percentage terms, but it always remains an inevitable emotional and financial impact for the individuals and families concerned. Deciding how to divide property and assets and settle the financial arrangements is and always has been one of the big challenges to our system of justice. Few can genuinely say that this system is working and is satisfactory in any real way.

I hope the House will forgive me if I return to the Matrimonial Causes Act 1973, which sets out the principles that the court has to take into account when deciding in each individual case on the division of assets. These include, as many noble Lords will know better than I, whether there is a child; the income, earning capacity, property and other financial resources which each of the parties to the marriage has; financial needs, obligations and responsibilities; the standard of living enjoyed by the family before the breakdown; the age of each party to the marriage and the duration of the marriage; any physical or mental disability; the contribution each party made, including family welfare; the conduct of each party if it is inequitable to disregard it; and the value to each of the parties of any benefit, such as a pension, brought to the marriage which, by reason of dissolution, the party will lose the chance of acquiring.

These principles also help to guide decisions by parties for out-of-court settlements too. However—and it is a big however—the extent to which the principles are useful is affected hugely by the court’s overriding discretion under Section 25. Under this section, the court is required to take into account all surrounding circumstances of the case. Therefore, each case is dealt with on an individual basis according to the facts. Some may say that that is great, but the truth is that it leads to such uncertainty that people end up in court when really they should not.

Let us look at examples from overseas. In many comparable countries, the statutory starting point for dividing matrimonial property on divorce is 50:50. In New Zealand, for example, any departure from the 50:50 rule would apply only where there was, interestingly, an enforceable prenuptial agreement, if it was a marriage of very short duration or there were extraordinary circumstances. The New Zealand system recognises that a person may have separate property that is not subject to the sharing formula unless it merges and becomes matrimonial property such as a family home. In the United States, where each state seems to have its own system, there seems to be a general move towards a simple 50:50 split.

Many couples who get divorced in this country are able to agree on financial arrangements and simply apply to the court for a consent order to be granted. For others, financial arrangement decisions on divorce, as we have heard, are long, expensive and painful. This obviously has a damaging effect on family life in the future when there is a need for parties to stay in long-term contact where children are concerned. Children are often caught, as we have heard, in the middle, with a potential impact on their development and relationships with one or both parties. Allowing the court to have a broad discretion recognises that not all disputes are the same. I will quote, not in the original Russian but from a well known translation, the first lines of Anna Karenina:

“All happy families are alike; each unhappy family is unhappy in its own way”.

The current law has led us to a growing feeling that there is just too much uncertainty for parties who are attempting to create financial settlements on divorce. This takes an enormous emotional toll on parties, as well as being extraordinarily and unnecessarily expensive. The longer it stretches on without being settled, the more stressful it can become. The noble Baroness, Lady Murphy, whom I praise for the frankness and honesty of her speech, gave good evidence of this. Of course, it then does more damage for the vital future.

We on these Benches are very interested in the Government’s plans for changes in this area of law. Do the Government plan to change the principles that guide the court and the parties in determining whether a financial settlement is fair and reasonable? To what extent would they retain courts’ discretion to take into account the individual—but not exceptional—circumstances of parties? How will they calculate a fair formula for maintenance payments where a party is young, with years of future earning potential; or older, following a joint marital decision for one party to forgo their career to care for the children of the relationship instead?

When we were in government we recognised the complexity of financial settlement on divorce. That why we initiated the fundamental review of the family justice system in January this year. We are delighted that the new Government decided to continue with that review and issued their call for evidence in June 2010. I invite the noble Lord, in responding to this debate, to give us what information he can about any preliminary findings from this review. I know it closed only on 30 September but any information that he can give us would be gratefully received.

An amicable divorce is indeed a rare thing. Often there are harsh words, and even deeds, between parties to a divorce, with negative outcomes. That is why the family review looked at the best methods for avoiding confrontational court hearings and encouraging the use of mediation to deliver fairer and less acrimonious settlements that place the needs and interests of children and the parties at the heart of the system.

We are proud of our system here as far as criminal law is concerned. It says that there should be two parties and they should fight it out in court. For criminal law there is a strong argument that that is a better system than systems elsewhere. However, in the sensitive field of family disputes, is it really to be argued that confrontations in court should be the rule, rather than the exception? Is it not much better to look at alternatives to confrontation in court? One of those alternatives is mediation, which has been around for a long time. However, there is—I have heard lawyers say this themselves—a belief that some lawyers in the industry have from time to time merely paid lip service to the option of mediation. In some ways, one cannot blame them because the incentive is to keep the case going. However, if you do that it is unfair to clients and other lawyers, the vast majority of whom make every effort to ensure that cases are not brought to court unnecessarily. I pay tribute to Resolution, a body with 5,500 members comprising solicitors and others committed to using non-adversarial processes with their clients, including mediation and collaborative law, as we have heard.

The question is whether and how we can enhance the use of these processes to improve the family law system. These are very difficult issues. I pay tribute to all those, whether litigators or advocates, who carry out family work. It is a very hard job, which is sometimes difficult and uncomfortable and, on the whole, they do it with enormous skill and probity, and not always for the greatest reward. We on this side of this House think that change must come. I very much hope and believe that the Government are of the same opinion. Our present system is not an option. It is not working satisfactorily for anybody in the system—parties, lawyers, courts or the state. However, change must be thorough, thought out, discussed and, we hope, agreed by consensus.

My Lords, I thank the noble Baroness, Lady Deech, for initiating the debate. The fact that she has done so is fully justified by the quality of the contributions. I start at the end, as it were, by responding to the noble Lord, Lord Bach. I am well aware of his work and concern in this area. I do not think that there is any break in the approach as between the two Governments. We shall build on what the noble Lord did under the previous Government. He has already reflected on there being no silver bullets or quick-fix solutions to this matter and said that it has to be thought through, listening carefully to experience and advice on all sides. As he rightly said, we are dealing with extremely complex financial and emotional issues.

As the noble Lord knows, the justice review to which he referred is conducted by an independent panel chaired by David Norgrove. It will publish an interim report in the spring of 2011, when we will get the first impact of its thinking. The Government will await the outcome of the family justice review before making any firm decisions on comprehensive divorce law reform. However, dissatisfaction and complaints have emerged from all sides in this debate, from those who have gone through divorce and from divorce practitioners. I was not shocked by the speech of the noble Baroness, Lady Deech, as I had seen the letter that she had sent to colleagues, in which she outlined her approach to these matters. I certainly do not consider her views idiosyncratic. I would be a brave man to do so in any circumstances, but particularly so as regards the field we are discussing.

As the noble Lord, Lord Bach, said, we live in an age when there are many divorces. The timely intervention of the right reverend Prelate the Bishop of Blackburn and the contribution of the noble Baroness, Lady Murphy, were right. In all but a few cases, we enter marriage in the belief that it is for life. When it sometimes does not end up like that, it is very traumatic. I am not sure that we are all like the girls in a Manchester school who, when asked in a recent television survey, said that their ambition in life was to marry a footballer as a way to fame and fortune. The implication was that a marriage in those circumstances would be fairly short. However, the right reverend Prelate’s speech resonated for most people in terms of a moral approach to marriage—a determination to try and make it work. The law’s job when breakdown occurs is to try and help as much as it can in ensuring a civilised break.

I listened to the noble Baronesses, Lady Deech and Lady Meacher, and I agree that the independence of women has recently increased enormously. However, I am still not sure that the balance in divorce cases is quite as equal as they imply. As the noble Baroness, Lady Murphy, implied, it can often be unequally weighted against the woman in terms of being able to maintain standards or build a career after divorce. As we know too well from some of our crime statistics, far too many women in this country have to manage dysfunctional families long after the male has gone.

My Lords, I am responding to the noble Lord’s indication that we were implying somehow that the positions of men and women are equal. My concern—and perhaps that of my noble friend Lady Deech, though I should not speak for her—is simply that things have changed a great deal in the past 40 years, and the law was written at a time when the position of women was very different from what it is today. Situations vary. There are occasions when the woman is the all-powerful and rich earner, and others when it is the man. All situations have to be judged on their merits. I did not want the Minister to take that as a suggestion of equality.

I fully understand and accept that. Things have changed a great deal in the past 40 years, but a lot of things have stayed the same. We have to take both realities into account. In terms of divorce, the lower down the social scale—if that is the right description—the less things have changed. I can quite imagine that the qualified professional woman is able to re-establish herself very quickly. The woman who has been holding a family together but is very much dependent on a male breadwinner is in a very much different situation. I just make the point that when we are looking at reform, we have to ensure, as our system does, that judges consider three principles—need, compensation and sharing, shaped by the overarching requirement for fairness. Each party is entitled to an equal share of the assets of the partnership unless there is good reason to the contrary, but the yardstick of equality is to be used as an aid, not as a rule. Any decision will be based on individual circumstances and needs. The court does not impose a one-size-fits-all solution. Consideration will be given to the potential earning capacity of both parties. Spousal maintenance orders can be conditional and time-limited, ending in any case if the recipient marries again. One-third of divorced couples make an application for ancillary relief, but a large majority of them seek simply a consent order.

Mention was made by, among others, the noble Lord, Lord Grantchester, and the noble Baroness, Lady Deech, of prenups. We await with interest Wednesday’s ruling of the Supreme Court in Granatino v Radmacher. At present, the courts can take into account prenuptial agreements as part of the balancing exercise that judges must undertake in ancillary relief proceedings under Section 25 of the Matrimonial Causes Act 1973. The judges can still apply discretion—

I am grateful to the noble Lord for giving way. He has read out a list of the various arguments and considerations that the courts, under the Matrimonial Causes Act, can take into account, including—to the extent to which they may wish to do so—the existence of a prenuptial agreement. Would he not agree that the problem is that because there is such a range of criteria, principles and precedents, it is impossible in any one case to give professional advice or predict what the likely outcome, or weighting between those considerations, will be? Would he not agree that a law that is not clear is a bad law?

Certainly, a law that is not clear is a bad law. That is why we will consider carefully the outcome of the Supreme Court decision, and then the recommendations of the Law Commission, which will look at reforming the law. I hope that we will be able to do that with some urgency.

Another issue raised was that of “the divorce capital of the world”. The term has gained traction mainly because of some high-profile cases with large sums involved. However, I noted a comment by Lord Justice Thorpe, who said:

“There are only 17 judges of the family division”—

of the High Court—

“whose primary responsibility is to justice domestically. There they operate under great pressure of work. I question whether there should not be a more stringent allocation of judicial time to cases such as this where the parties have slender connection with our jurisdiction”.

As I said, there has been criticism of the system by the judiciary as well as by those who have to go through it.

Another point made by the noble Baronesses, Lady Deech, Lady Meacher, and Lady Murphy, concerned the issue of mediation. My colleague in the other place, Jonathan Djanogly, said the other day:

“Too often people in family breakdown situations use court as the first answer when they shouldn't. Often it's dealing with contact with children or intimate personal relationships that really shouldn't be going before the courts”.

The Government's view, which is shared by the noble Lord, Lord Bach, is that there is a prospect of putting forward mediation as an alternative to expensive and emotionally charged court proceedings. It is an interesting fact that about 70 per cent of publicly funded cases in which mediation is attempted end up with a successful outcome reached away from the courts, and 60 per cent of publicly funded parties who learn about mediation end up with a successful outcome reached away from the courts. The figures for self-funding parties are similar if not higher. In looking at reform, the Government and many outside experts believe that we should publicise mediation and encourage it to be used much more than it is at the moment.

The contributions from all sides have indicated that our law is in need of examination. That examination is under way: the Supreme Court is considering prenups, while the study group and the Law Commission are also looking at the issue. We hope that, in 2011, those findings and studies will come together, which may be an opportune time to look at a range of reforms to our divorce law, so that it meets real needs and many of the criticisms that have been voiced today.

Again, I thank the noble Baroness, Lady Deech, for raising this issue. I cannot give a snap answer to the question that she has raised in this short debate, but I hope that I have given a sense that we are continuing the initiatives of the previous Administration with a sense of urgency and that we shall look at the matter when the various studies come to fruition.

House adjourned at 6.26 pm.