Consideration of Commons Reason
My Lords, I beg to move that the Commons reason be now considered.
My Lords, I must say that I am rather disappointed that the Minister has not sought to give any explanation at all as to why the Government have not given further consideration to this matter. In fact, it is quite extraordinary that she gave no explanation at all to your Lordships’ House.
On 12 November, this House agreed by a substantial majority to an amendment to give compensation to ID cardholders whose cards are due to be cancelled. The Commons have now sent it back to us on the grounds of financial privilege. As it is a privilege reason, my understanding is that it would be contrary to convention to send back another amendment, which would clearly invite the same response. The debate this afternoon none the less affords an opportunity to the House to indicate to the Minister the strength of feeling on this matter and, even at this late stage, to ask the Government to reconsider.
The introduction of ID cards was subject to intense debate in your Lordships’ House. We on this side saw the ID card scheme as a convenient and secure way of asserting one’s identity in everyday life.
I am advised that there is nothing before the House to debate at the moment.
There is a Question before the House that the Commons reason be now considered. Afterwards, a Motion will be called, to which the noble Baroness will speak, and there will then be an opportunity for debate. However, if the noble Lord, Lord Hunt, wants to contest the consideration at this moment, I understand that it is possible for him so to do. If that is his intention, then we are debating procedurally whether or not to debate Motion A.
My Lords, shall I carry on? Perhaps we can have a debate on the general issue. I am most grateful to the Lord Speaker for helping us through that.
Following the introduction of ID cards, 12,000 or so members of the public purchased a card for £30. The cards were for a period of 10 years. As a result of the Bill, these cards are to be cancelled within a short time, many years before their due expiry date.
Whatever one’s views on ID cards, noble Lords from all sides of the House were concerned about the Government’s mean-spirited decision to refuse to refund the £30 to those who purchased an ID card. The Home Office Minister, the noble Baroness, has appeared—
My Lords, perhaps I may help the House. We are debating whether we should consider the Commons reason. We are not yet debating the Commons reason. If the noble Lord opposite wants to take advantage of our procedure, he is able to do so, but I hope that he will not speak at great length.
My Lords, I am in the hands of the House. I want to debate the issue, as this amendment has been returned from the Commons, but if the House would prefer the noble Baroness to move her Motion first, I can resume speaking afterwards. Clearly that would be helpful.
I sense that that is the will of the House; so we shall take the procedural Motion now, and I am sure that there will be an opportunity for debate when we get on to Motion A. The question, therefore, is that the Commons reason be now considered.
Page 2, line 5, at end insert—
“( ) giving cardholders the option of being reimbursed £30 on surrendering their ID cards by such a date and pursuant to such arrangements as the Secretary of State considers appropriate”
The Commons disagreed to the Lords amendment for the following reason—
Because it would impose a charge on the public revenue, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
My Lords, consideration of the Bill during its passage through this House and the other place has recognised that the decision to scrap the ID card and destroy the national identity register was a commitment in the general election manifestos of the Conservative Party and the Liberal Democratic Party. That commitment formed part of the coalition agreement published on 12 May, and the Government introduced this Bill to Parliament on 26 May. We have acted swiftly in achieving our manifesto commitment and believe that the Bill’s purpose, which is to remove the intrusive ID card scheme and the national identity register from the statute book, has widespread support in the country.
Noble Lords are today focusing on the detail of the decommissioning process rather than on the significance of a Government destroying a national database. The Bill is a major step in removing the state from unnecessary and undesirable intrusion in the personal life of the individual. We should not forget the significance of the Bill, nor should we minimise the landmark action of a Government legislating to get rid of a national database. However, there are costs associated with dismantling the scheme. In incurring those costs, the public must be confident that taxpayers’ money is being spent effectively and efficiently. The ID card scheme and associated work on biometrics and policy development has to date cost the taxpayer £292 million. Further costs of about £5 million will be incurred in dismantling the scheme.
Further spending would be required if we were to provide refunds. I am aware of the strength of sentiment that has been expressed on this point, but this proposal would cost around £400,000. That may not seem much in the grand scheme of spending to date by the previous Administration on ID cards, and it may be that some Members of this House consider it an insignificant sum, but this is not how the coalition Government look at public finance. We are tackling the deficit which we inherited. We are doing that by ensuring that moneys are spent only where necessary and that such spending delivers more for less. Providing a refund on ID cards does not meet any of those criteria.
I am not ignoring the fact that cardholders spent £30 each on a card for which there will be no further use on enactment of this Bill.
If no compensation is to be paid, then presumably the card will become the property of the person who holds it. We briefly debated that point when we considered the Bill. Does that mean that the person who now holds the card as their own property, as they are not being given any compensation for it, will be able to use it to prove their identity in certain circumstances, such as for young people in pubs, or whatever else it might be?
My Lords, I think that it would be for the convenience of the House if we allowed the Minister to lay out her stall, as in doing so she may very well answer the noble Lord’s point. I know that the Minister is very keen that all noble Lords’ questions are answered.
I will respond to the noble Lord’s point. The answer is no. The card does not have value or efficacy because it is no longer attached to a database which would enable it to be a valid document that could prove your identity. It is simply a piece of paper, because there is nothing behind it.
I am not ignoring the fact that the cardholder spent £30 on a card for which there is no further use. During debates here and in the other place opponents of the Bill indicated that the decision to refuse to issue refunds will affect the poorest or the less well off members of society. However, there is no socioeconomic breakdown of cardholders, so neither noble Lords opposite nor the Identity and Passport Service can indicate the economic status of cardholders. I cannot imagine the circumstances in which a person struggling to make ends meet would think that buying an ID card was a necessity. If the ID card scheme was intended to allow travel to Europe or to provide proof of identity to get into pubs and clubs, then, frankly, it is doubtful that we should consider this form of purchase to satisfy the criterion of core household spending.
There is no provision in the Identity Cards Act, which the Benches opposite passed in 2006, for applicants short of cash or on a limited income—
My Lords, long experience shows that the best way of dealing with this type of business is to allow the Minister to lay out the current situation and update the House. The noble Lord will have plenty of opportunity to make his points. As I have said before, my noble friend will be very keen to answer them.
I have to say that I think it is quite extraordinary that the noble Earl should find it necessary to try to protect his Minister, who is doing her job and defending as best she can the policy of the Government of the day. I hope that no Minister worthy of the name would need protection of that kind. I would be grateful if the Minister will just answer a simple question. Do the Government realise that there is a fundamental moral issue here? It is not a matter of complex socioeconomic categories—it is a very simple moral issue, is it not? Citizens have bought in good faith from the Government a good or a service and a new Government are now proposing not to deliver. Is that not the action of a dishonest trader? Is that the sort of example which this Government believe it is right to set for the nation?
My Lords, as there have been a number of interruptions, and we are perhaps following precedents which perhaps should have been challenged before, I shall just read to Members on both sides what the Companion says on this matter:
“A member of the House who is speaking may be interrupted with a brief question for clarification. Giving way accords with the traditions and customary courtesy of the House. It is, however, recognised that a member may justifiably refuse to give way, for instance, in the middle of an argument, or to repeated interruption, or in time-limited proceedings when time is short. Lengthy or frequent interventions should not be made, even with the consent of the member speaking”.
I suggest that we stick to the Companion.
That legislation did not put in place a scheme to offer financial support to buy cards at the point of issue, nor was there any provision for specific groups, based on social or economic factors, or both, to have cards free of charge or at a reduced rate. It was not considered an issue. Clearly the previous Administration did not consider that ID cards were an essential household purchase or a requirement for those who have to live on low levels of income. That remains the case with the refunds policy.
I acknowledge that the intention of noble Lords is to ensure that the individual is protected where appropriate. That is a key and important function of this House. In this case, however, we have to protect the interests of the taxpayer. We should not be spending yet further sums of taxpayers’ money on a scheme that has very little public support and that would be scrapped on enactment of this legislation by Parliament. I beg to move.
My Lords, first, I apologise to the House for intervening rather too early in proceedings. I have listened very carefully to the Minister but, although she says that she has listened, she appears surprisingly unsympathetic to the thousands of people affected. What really worries me is that she is completely oblivious to the precedent that is being set.
At Second Reading, she said that,
“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”.
She went on to say that,
“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”.—[Official Report, 18/10/10; col. 715.]
She dismissed the potential refund of £30 as,
“rather less than probably most people pay for a monthly subscription to Sky”.—[Official Report, 18/10/10; col. 742.]
On Report, the argument had advanced. The noble Baroness said:
“We do not believe that the statutory basis of the issue of ID cards creates a contract or anything akin to a contract in relations between the Secretary of State and the cardholder. Remedies that would be available in the courts if the contract were governed by the law of contract or consumer legislation … is not available for identity cards”.—[Official Report, 17/11/10; col. 792.]
Today, we hear this argument about the socioeconomic background of holders of the card. What on earth has that got to do with it? This is a matter of principle.
Let us just think about the wider principle, not just in relation to ID cards and the sum of £30. For example, an incoming Government say that because they disagreed with the original policy of a previous Government, it is just tough luck on members of the public who decided to act on the provision that became available as a result of the actions of the previous Government. Does the Minister not see that, in refusing to refund the £30, she is developing a new principle that will essentially reduce trust in Governments generally?
What policies might this apply to in the future? If we were to accept the logic of the noble Baroness’s argument, it would be open to an opposition party to say, “We don’t agree to a policy being brought in by the current Government”. If, subsequently, that opposition party came into Government, they could simply rescind the policy and refuse to pay any compensation if that policy had involved an outlay of money by members of the public. That is simply not the right way to treat people in this country. For instance, that was not the way in which the previous Government dealt with the assisted places scheme. We abolished that scheme but we allowed children in receipt of an assisted place to complete the remainder of that phase of their education.
It is no wonder that on Report the noble Baroness’s noble friend Lord Vinson described the Government’s position as “morally indefensible”. What is her response to my noble friend Lord Richard who pointed out that,
“identity cards were not sold on the basis of, ‘You are buying it from a Labour Government, but if another one come in, things may change and you may have to renegotiate it’”? —[Official Report, 17/11/10; col. 789.]
What does she say to the noble Earl, Lord Erroll, who thought that the Government were guilty of mis-selling? As he said,
“If you expect a member of the public, seven months ahead of the general election, to be able to predict its outcome, there are a lot of geniuses among the public whom we ought immediately to recruit to become pollsters”.—[Official Report, 17/11/10; col. 787.]
Has she taken on board the comments made by her noble friend Lord Phillips of Sudbury? On Report, he said:
“Governments must set an example of the standards they expect of private industry. Had private industry engaged in a tactic of this sort, noble Lords on all the Benches would have been up in arms, and rightly so”.—[Official Report, 17/11/10; col. 785.]
On Report, the noble Baroness said that she would look at the matter again. The defeat of the Government after her comments required no less. I would ask her what form her further consideration took. Will she say why the Government are not taking on board the views of this House? She cannot simply hide behind financial privilege.
She also said on Report that she would seek advice on whether the Government risked legal challenge from the holders of ID cards since the Government are essentially confiscating cards without compensation. She was asked by the noble and learned Lord Morris of Aberavon to confirm that the advice she received came from the law officers. Will she inform the House whether the law officers gave such advice?
Finally, I appeal to the noble Baroness to consider the matter again. The Government are setting an extraordinary and dangerous precedent by not paying compensation. Such a precedent goes much wider than ID cards and would be very unfortunate as regards trust in government. She should think again.
My Lords, it is one more noxious constitutional innovation on the part of the coalition that the Government seek to pray in aid financial privilege when they do not want to face up to the consequences of their policies and their legislative actions in this House. Historically, I believe, privilege has not been claimed in relation to matters of expenditure. I am very willing to be corrected by noble Lords who are former Speakers or Deputy Speakers of the House of Commons, but that is my belief. There is hardly a policy, a Bill or a statutory instrument introduced by Governments into Parliament that does not involve expenditure. If it ceases to be in order and permissible for this House seriously to consider the legislation and the policies brought in by the Government on the basis that financial privilege means that it is not appropriate for us to do so, we might as well pack up and go home. Such a situation would make an absolute mockery of our claim to be a revising Chamber or, indeed, a proper debating Chamber.
On that point, I appreciate that the noble Earl, Lord Attlee, always seeks to act in the best interests of the House, as does the noble Lord, Lord McNally, but I would say to them that we are a debating Chamber. As my noble friend Lord Davies said, the noble Baroness, Lady Neville-Jones, is very well able to look after herself. The House respects her and I am sure that she is personally willing to enter into debate.
On the constitutional point, I think that this really is of the greatest importance. It seems both cowardly on the part of the Government and contemptuous of this House that they seek to evade debate and, under a new and bogus claim of financial privilege, seek to prevent us from voting on issues on which we have traditionally been entitled to vote. This is a constitutional innovation of which your Lordships’ House should be aware and upon which it should reflect very carefully indeed.
My Lords, we have just listened to the most toe-curling self-righteousness from Members of the Opposition, who were, after all, the ones who introduced the ID cards scheme in the first place. They encouraged people to think that it would be a great thing to have an ID card. The fact that 30,000 people or thereabouts bought ID cards does not necessarily mean that those people thought about whether the cards were a good thing; they were encouraged to think so by the previous Government. Now we have the noble Lord, Lord Howarth, whom I have a lot of time for, saying that the Government will have to face up to the consequences of their policies in this House.
I say to noble Lords opposite that they should all face up to the consequences of their policy of bringing in ID legislation in the first place and of encouraging people to go and buy the identity cards. I am not taking sides on this one—
No, I am not. Please listen to what I have said. The self-righteousness coming from the other side is quite sickening.
I abstained in the debate because I felt that there was a moral justification for the money to be repaid to the people who were conned by those opposite into spending money on ID cards. There is no point in denying that by trying to be the people who support everybody out there and by adopting a high moral tone and self-righteousness. Rubbish.
My Lords, I hope that I will not be accused of being self-righteous if I say that I share the concerns that have been expressed by the noble Lords, Lord Hunt of Kings Heath and Lord Howarth of Newport.
Behind the moral issue and the issue of principle, I think that there is a legal issue. The Minister will recall, as mentioned by the noble Lord, Lord Hunt of Kings Heath, that it was suggested to her on the previous occasion when we debated the matter that she might wish to take specific advice from the law officers as to whether the Government’s approach is consistent with this country’s obligations under the European Convention on Human Rights. The concern, which is very simple indeed, is that the Bill removes a property right without any compensation, in breach of Article 1 of the First Protocol to the ECHR and, therefore, that the amendment that noble Lords approved was not only wise but necessary.
When we last debated this matter, the Minister’s answer was that the ID card remained the property of the Government and therefore there was no difficulty. With respect, however, that is no answer at all. It is very well established in the case law of the European Court of Human Rights—indeed, it is common sense—that, when the Government grant a licence or an authorisation to do something, that of itself establishes a property right. If that licence or that authorisation is then removed by the Government, contrary to the expectation that has been created, the Government have a duty, other than in the most exceptional circumstances, to pay compensation. That legal obligation is precisely consistent with the substance of our debate on the previous occasion and with the amendment that was approved by noble Lords.
I therefore join the noble Lord, Lord Hunt of Kings Heath, in asking the Minister to explain whether she has indeed taken specific advice from the law officers, to deal in more detail with the substance of this concern and to explain to noble Lords how it can be that what the Government intend to do is consistent with this country’s international obligations.
If there is a breach of human rights, of course that is a worry, but it is the job of the Court of Human Rights to put it right. If we are concerned with a matter of principle—I understand what the noble Lord is saying—surely the policy of a previous Government cannot be constitutionally binding on the next Government. Whether it is unfortunate and whether there is criticism, the policy of this Government was in fact accepted by this House. If we have got it wrong and the noble Lord is right, that will not affect the validity of this piece of legislation in this country. However, if an application is later made to the Court of Human Rights, it may decide that the point of principle here is that this Government—I do not always agree with them or, indeed, with any Government—have the entitlement in constitutional principle to reject the advice of the previous Government.
I have, of course, enormous respect for the knowledge and judgment of the noble Lord, Lord Campbell of Alloway, but on this occasion, with respect, I do not agree with his opinion. It is part of the law of this country that the Minister, like all other Ministers, has a positive duty under the Human Rights Act to confirm to this House and the other place that the legislation that the Government are bringing forward is consistent with the European Convention on Human Rights. That is the law of this country. I respectfully ask the noble Baroness to tell this House, consistent with her duty under the law of this land, why she is confident—if she is—that this proposal is consistent with our international obligations.
On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.
I agree with the noble Baroness that the constitution issue has to be disentangled from the question of what is immediately to be done about the practical issue—the substance of the policy—in the Government’s rejection of the amendment that was made in this House. I hope that the noble Baroness, Lady Hayman, the Lord Speaker, is already engaged in this matter—I am sure that she is—and that she will wish to hold discussions with the Speaker of the House of Commons about the possibility that the doctrine of financial privilege is being extended in a manner that is dangerous to the interests of this House and the fulfilment of its proper responsibilities.
My Lords, the noble Lord, Lord Pannick, made a powerful case on whether or not a right of property has been established. He made an equally powerful case on the last occasion that we debated the matter. I asked then whether advice had been sought by the Minister, particularly from the law officers, as that would have been helpful. I understood that we might be told before Third Reading that that advice had been sought. In the Bill there is a declaration that the legislation is compatible with the European Convention on Human Rights. Having heard the powerful arguments of the noble Lord, Lord Pannick, is the Minister satisfied that that is the case?
My name was on the amendment and I have listened carefully to what my noble friend the Minister said in opening the debate. Three issues need clarifying before we can safely push this matter forward. The first has been well aired—namely, whether this is compatible with the European Convention on Human Rights. The noble Baroness will tell us very soon whether she has had clear advice from the law officers that it is compatible. I line up with the noble Lord, Lord Pannick: it is difficult to comprehend that this confiscatory measure can be consistent with the protocol. That is the first issue.
The second issue has also been well aired—my noble friend Lady Hamwee has just referred to it—namely, whether we can at this juncture pick a fight with the Commons on its reasons. I listened carefully to what the noble Lord, Lord Howarth, said and I would be the first to leap on to the barricades if I felt that the privileges of this House were being undermined, but we need clear advice on that. Perhaps the learned Clerk may have something to say. I am very disappointed to see him shake his bewigged head. My own sense, for what it is worth, is that the Commons have a case. The amendment is a specifically money amendment; it specifically commits the Exchequer to compensation at the rate of £30 per ID card surrendered.
My understanding of the conventions is that we have no right to impose expenditure on the Commons and this is an expenditure provision—an expenditure of £30 per card surrendered. However, that is another matter on which we must have absolutely clear advice. It would be folly for us to go ahead today—
If we cannot contest the issue of financial privilege, why is it being raised at this stage when it was not raised when we debated the matter previously? If it is a matter of financial privilege, why was it permissible for this House to debate the matter previously and to pass the amendment that it did? Would it not have been appropriate to make the point that this was a matter of financial privilege and not open to the House at that stage?
I am obliged to the noble Lord for his intervention—of course, he is right—but I took some comfort on the day that we debated and passed the amendment from the fact that my noble friend the Minister made no reference to privilege. I took that, obviously fallaciously, as indicating a potential open-mindedness on the part of the coalition Government, my Government, to think again on this issue were we in this House to pass the amendment that we did. That is my third point: regardless of whether the two legal issues here are stoppers, I would have hoped—even at this stage, given that views across this House have been expressed with not a single voice in favour of what the Commons are proposing to do vis-à-vis the amendment—that my noble friend would be able with my other friends in government to do the right thing. The right thing is abundantly clear. My noble friend talked of effectiveness and efficiency. It is not effectiveness or efficiency that we are talking about here; it is fairness, which is the single most important claim made by my Government. I want to see them walk the talk.
To follow the noble Lord’s speech is rather pleasant, because he put more passion into it than I could hope to put into mine and because I agree with him. I had not intended to intervene, so I shall brief, but I am increasingly concerned about the way in which the procedures both on issues of this nature and in the House more generally are being changed. As my noble friend pointed out, supported by the noble Baroness, Lady Hamwee, there is a problem about us overturning what the Commons have done. I am not saying that we should do that now, but I am becoming less clear about financial provisions. Very few issues come back to this House that do not involve some expenditure. If the rule is to be no expenditure, there will be an awful lot of things that we will be unable to pursue. That will affect all sides of this House.
I say again, as I have said on many other issues, that the Government are driving through and changing procedures, which is deeply unsatisfactory for this House. We saw it from the Front Bench today. I know that the noble Earl, Lord Attlee, is keen to help the House, but to have a Minister telling another Member of the House not to intervene when the other Minister has already accepted the intervention does not fit with the guidance that the House offers. I have my reservations about whether this really is a self-regulating House, but, if it is, one Minister should not intervene to tell a Back-Bencher to sit down and not intervene on a Minister who has already accepted the intervention. It must be wrong. For the noble Lord, Lord McNally, who is sadly not in his place, to follow that up in the way that he did was not helpful. The Government have to recognise that they are not in charge of Parliament. Parliament controls government; government should not control Parliament. We are seeing far too much of this. I support my noble friend Lord Howarth in his request to the Speakers of the two Houses to try to clarify this important issue of expenditure and finance-raising.
On the issue itself, the noble Baroness has strayed into the area of the pros and cons of ID cards. I was always unsympathetic to the idea of ID cards, but the Minister has problems coming down the line. She might want to have a word with her colleague the Minister for Health in this House, who was very helpful to me. A couple of months ago, I raised with him the situation that is developing in the health service where GPs’ surgeries are refusing to register patients unless they produce their passports as ID. They will not accept any other form of ID. By taking away the ID card, we are creating a situation where other things become an ID card. Please do not think that this issue is going away. It will be difficult.
That is another part of the noble Baroness’s problem. Frankly, what the noble Lord, Lord Phillips, said in his intervention is absolutely right. It is sheer common decency that when a Government take over and choose to reverse a policy taken by the previous Government, which is a perfectly reasonable thing to do, they must make sure that ordinary citizens do not lose out. That is what is wrong with this. I am afraid that it also fits in with the danger of the Government trying to run Parliament and not the other way round.
My Lords, the noble Lord, Lord Pannick, and other noble Lords speak with great authority on the Human Rights Act, the convention and our obligation to follow the Human Rights Act. On this issue, there are strong cases to be made on both sides and there are abstentions. The reason why the Government may have decided that the Bill is compatible with the Human Rights Act is simply that the Act is concerned with substantial matters; it is concerned with violation of rights of real value. Whatever one may say about the value of £30, I respectfully suggest to the House that that is not what the Human Rights Act is concerned with. That is one of the reasons why the Human Rights Act has not always been welcomed on all sides of the House.
I briefly follow my noble friend Lord Howarth on the substantive issue of the Commons reason. This is a sensitive issue and there are clear conventions that we should not in this House criticise the proceedings of another place—and I would not dream of doing so. However, I wonder whether I can take Members of this House back to another period of Conservative government. I recognise that a declining number of Members of this House were in here at the time of the last Conservative Government. Those of us who were used to delight in the tussles between my noble friend Lady Hollis and my friend but, alas, noble opponent at the time, Lord Mackay of Ardbrecknish, on pensions legislation. Frequently, Lord Mackay of Ardbrecknish had to make concessions and was sometimes defeated. The effect of those concessions and defeats was that this House increased government expenditure. That Conservative Government never cried financial privilege.
My Lords, before the House reaches a judgment on the Commons reason, there ought to be absolute clarity about the intention of the House of Commons. It is far from clear in the reasons that have been provided that it is the intention of the House of Commons to claim financial privilege. A single reason is given and that is that the amendment that we are considering, which was carried in this place, would impose a charge on the public revenue. In opening the debate, my noble friend explained that as the Government giving priority consideration to the taxpayer over those who have paid for their identity cards. That does not sound like the invocation of the right of the House of Commons in respect of financial privilege. Without some greater authority indicating that that was the Government’s intention, there seems no bar to this House paying serious consideration to the law officers’ views on the legality of what is proposed under the terms of the human rights convention. I hope that the House will not be forced to take a decision without those views being made abundantly clear and without absolute clarity about the intentions of the Commons in bringing forward this sole reason for their disagreement. To my mind it is far from clear. We will establish a bad precedent if we determine that claims can be made lightly, not by the Commons themselves, that their privilege in this respect has been breached.
I shall be brief, although I thought that the actions of the noble Earl, Lord Attlee, and the noble Lord, Lord McNally, were provocative, to say the least, forcing some of us to make longer speeches than we would have done otherwise.
On the relationship between ourselves and the House of Commons, the important question was asked why we were allowed to vote on the amendment in the first place if, in fact, it was not legally our right to do so. If we voted for it and it went back to the Commons, surely we should be allowed to look at it again and vote on it again if we so wish.
I am one of very few people in the House who came out publicly in support of the ID card and opposed this piece of legislation. I think that we will come back to the issue. I listened to some of the debates last night on the register and the census and that sort of thing and I thought to myself that, if we all had ID cards, it would all be irrelevant and we would not need to go through that process. I am still not at all clear in my own mind as to what the standing is of the ID cards that have been issued. The Government are claiming that the cards are their property, so surely they should ensure that every one of them is returned to them. They should not be leaving that in the hands of private individuals; it is up to the Government to say that the cost of claiming back all the ID cards would be as much as paying compensation to those who have them.
The other point is one that I have consistently raised. Can someone actually use the ID card—perhaps in an exchange between two people, such as a barman or pub owner and a young person? The youngster might say, “I’ve got an ID card”, and show it to the barman, and the barman could say as a result, “That’s fine, I accept you’re over 18”. Is it legal for that person to do that? If the card belongs to the Government, surely the person has no right to use it in that way. Can we get an answer to that question from the Minister? We seem to be in limbo on it. I do not quite know what the standing is of the ID cards held by individuals if they are not being compensated for them in any way whatever.
My Lords, we have had another lively debate on this subject. Perhaps I can deal with some of the issues to which it has given rise. On compatibility with the European Convention on Human Rights, the Government would not put forward legislation that they did not believe to be compatible with the convention. We believe this Bill to be compatible with the convention. I hope that that is a clear statement. We believe it to be compatible with the European Convention on Human Rights.
Can the Minister confirm that the law officers have given such advice? She said on Report that she would find out. I am surprised that here we are, over a month away, and noble Lords who took part in that debate have not yet been informed of that.
I repeat to the House that the Government believe that this legislation is compatible with the European Convention on Human Rights. I do not think that I am obliged to say whether or not we have consulted the law officers, nor to say what legal advice we have taken. However, we believe it to be compatible with the convention. As we take our duties seriously, that is a clear statement to the House that we believe that we are acting lawfully.
Does the Minister appreciate that the question is not simply whether or not the Government are satisfied that the Bill that they are putting forward is compatible with the convention? Will she address the point that on the previous occasion, and in the debate today, a specific concern has been raised about why it is feared that the Government’s position is incompatible with the convention? That is why it was suggested to the Minister on the previous occasion that specific advice should be taken from the law officers on this precise point. I am sure that it would assist the House if the Minister were at least able to say whether she went back to the law officers in the light of the debate on the previous occasion, and in the light of the specific concern that was raised, in order to assure herself and noble Lords that that point had been considered and the Government were satisfied with regard to it.
I have the record of our debate on the previous occasion in Hansard. I asked, and my noble friend Lord Hunt has referred to this:
“On the assumption that no advice has been obtained from the law officers on these matters, would it be prudent before the next stage of the Bill to obtain such advice?”.
The Minister replied:
“My Lords, I will confirm the advice that I have received”.
“Is the advice from the law officers?”,
and the Minister replied:
“I am not sure that I can confirm that. I will seek to do so before Third Reading”—
that is, confirmation that advice had been received from the law officers.
As I understood it, it is quite right and proper that a Minister does not reveal the nature of the advice that has been received from law officers. It is another matter for the Minister to confirm whether or not advice has been sought, and it is that second question that the House wants an answer to.
The question is really quite simple. When this was debated last time, we understood that my noble friend would go back and take advice from the law officers. What that advice may be is one thing, but can she confirm that she did in fact go back to the law officers and seek their advice?
I think what I said was that I could not confirm that the law officers had been consulted, and I cannot confirm that today either. I am afraid that I cannot take this issue any further. We believe that we are acting lawfully; I would hope that that was a good answer to the House. We are acting lawfully.
Because I think it is inappropriate to answer it and I cannot take the matter any further. I am very sorry, but I do not think that I can take this any further. The House has made its point and I have given an answer. The House may not regard this answer as satisfactory.
On the specific point, the noble Baroness said:
“I will seek to do so before Third Reading”.
That was a promise made to the House in the course of the deliberations. Did she seek to do so before today’s proceedings? Has she made any attempt to do so? We know the conventions, which have been broken over the years. One could give a series of examples of the law officers coming to another place to give advice. They can do so, so it is not a convention that cannot be breached at all, but I come back to the simple statement that the noble Baroness made:
“I will seek to do so before Third Reading”.—[Official Report, 17/11/2010; col. 792.]
Did she seek to do so?
I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.
That is unacceptable because the noble Baroness gave a commitment to this House, as has been quoted. The answer to the question is a simple yes or no. If she gave that commitment and then did not deliver on it, she needs to say that. The House will not necessarily hang, draw and quarter on the issue, but we need to know the answer. If the Minister cannot answer that question, I am afraid that the Government have to answer the wider question of what they are doing in this regard, given that they are responsible for this department. If she cannot answer the question, the case for adjourning the House while she finds the answer, as the noble Lord has just suggested, or summoning the Leader of the House is very strong. We cannot have a situation whereby other Ministers keep jumping up to defend this Minister; that cannot be right. The Minister must be responsible for what she said at a previous stage and for what she is saying today. If she is not responsible for that, it is a serious matter.
My Lords, I am glad to see the Captain of the Gentlemen-at-Arms in her place. The position is that the noble Baroness, Lady Neville-Jones, on Report, told that House that she would seek to take certain actions. It has now become clear that for the House to come to a view on this matter, it is important that it knows the information that noble Lords requested on Report in relation to the law officers. It is equally clear that up to this point the noble Baroness has not been able to satisfy the House. Given that this is almost the end point for the Bill, I would suggest that if she is unable to answer the point, a short adjournment would in fact be sensible and in order.
My Lords, I am getting rather exasperated by all these exchanges. Surely, if the House is not satisfied with the replies given by the Minister, the time will come when that can bear on noble Lords’ judgment when they vote. However, the Minister has given her reply and I, for one, think it is high time that this debate came to a conclusion. The Minister has been very generous in giving way. Perhaps I may remind her that she is not obliged to give way. That has been made quite clear already this afternoon, when a long passage from the Companion was read to the House. I respectfully submit that it is about time we followed normal procedures and, if the House does not like the replies given by the Minister, that can be reflected in its vote. However, noble Lords must not disrupt the business of the House by silly points of order.
My Lords, the noble Lord, Lord Waddington, suggested that we should resolve this matter by a vote. I am not entirely clear whether it is the position of the Minister that the House should not be entitled to vote because the Government are claiming financial privilege.
My Lords, it is customary, when one Peer in this House asks a question, that permission is granted for an answer to be given, if the Minister wishes to do so, before another Peer gets up. I merely ask that we might follow some of the usual courtesies today.
I am grateful for the noble Baroness allowing me to respond to the argument of the noble Lord, Lord Waddington, on which, although he is my friend, I have to say I disagree. The points being made are not remotely trivial and I really believe that the House will be much clearer in its mind if we deal with this preliminary matter first, because, frankly, to go ahead and vote when a crucial, central and legal matter is unresolved seems to be the worst of all worlds. That is why I would favour an adjournment, as suggested by my noble friend Lord Dholakia.
My Lords, does this not go to the heart of parliamentary government as we know it and understand it in this country? The Minister gave a clear and solemn undertaking on a previous occasion that she would seek the law officers’ advice on a specific point. How can it possibly be “inappropriate”, to use her term, for her now to tell the House whether or not she fulfilled that solemn commitment? It is quite clear to me that if the Minister gives a solemn commitment and then refuses to say even whether that commitment has been fulfilled, and the House does nothing about it and simply goes away, we have abdicated our responsibilities as a Parliament.
My Lords, I am just not in a position to advise what information has been provided by the law officers, but I can confirm that we are satisfied that the provisions of the Bill are compatible with the ECHR. I have an answer on the substance. Could we perhaps turn to the question of financial privilege?
The question has been asked as to whether the Government are “sheltering behind financial privilege”. The Government are quite clear that they do not actually think that it is justified to refund this money. The Government’s position is very clear on the substance. As regards the issue of financial privilege, the Commons cannot even make a determination without the House of Lords itself putting forward a proposition. One has to have the proposition from the Lords before the House of Commons can take a view on that. It is obviously then a matter for the Commons to determine. The Government are not going to avail themselves—
My Lords, that is well understood. The Commons did not consider this matter; it was simply returned to this House with financial privilege. I have no doubt that that might happen again. The point is that the Government were given a number of weeks to reconsider the matter. The noble Baroness, on Report, wished to dissuade the House from voting and said that she would give the matter further consideration. She has not explained what further consideration has been given and why the Government are sticking to the principle of no compensation despite the clear majority of votes on the matter in your Lordships' House.
My Lords, the Government have given it further consideration and decided that they are not going to supply refunds. That was the position of the House of Commons. It is very clear that the Government are not going to avail themselves of the opportunity to waive financial privilege. This amendment would impose a charge on the taxpayer. Our view is that the taxpayer should be saved from having the charge imposed. Citizens are also taxpayers, not simply purchasers of ID cards.
On the substance of the matter, I say that we should have a sense of proportion about £30. It is absolutely not the same as, for instance, the example cited by the noble Lord opposite of assisted places for children. Of course, if a child had an assisted place, their educational career depended on it, and the policy changed, one would not cut off a child who was in mid-educational career. That is utterly different from a payment of £30. We should keep a sense of proportion. We do not believe that the purchase of the card constitutes any kind of contract between the Government and the taxpayer. Therefore, we do not believe that there is an obligation on the Government to refund the money, so the Government do not intend to do so.
The card will no longer have a database behind it to demonstrate its validity. Of course, it will not be an illegal act for someone to use it when they go to the pub. However, it has no legal validity, and one could perfectly well use a passport or driving licence for that purpose. For all these reasons, the Government do not believe that it is right—
Will the Minister explain what would happen if someone used one of these ID cards to go for a short holiday on the continent? It is a lot cheaper to buy an ID card than a passport. She may say that £30 is nothing to people who go on holiday, but that is a slightly arrogant approach. She says that the card could be used in pubs that ask for ID, but that no one will be able to check it against a database. However, we all know, from going into and out of this country, that there are different ways of being checked by electronic means. Will these identity cards still work when one goes through immigration or will they be cancelled?
The Minister says that the database has been abolished. I doubt whether any database ever gets abolished, because MI5 or someone else will want to keep it. At what stage will the ID card not work when one goes through immigration, and what is the other solution? Not everyone has a driving licence—why should they? Will it be the case that one cannot go abroad unless one has a passport, so that going abroad will not be possible for people who cannot afford a passport? I would be glad if the Minister would respond to some of those questions.
The ID cards will not have a database behind them. The previous Government decided that the database should be separate from the passport database. It is not possible to join up the two databases because they are not compatible; that is one of the problems. This database will not exist. Therefore, the ID card, although it might be regarded as a courtesy proof of age, for instance in a pub, will have no legal validity at the border. The receiving country might be willing to accept it, but I fear that the individual might not get back into this country because they would have to show a document that had a database behind it.
My Lords, can we return to the point raised by the noble Lord, Lord Pannick? It is a very simple point. The citizen acquires an identity card that becomes his or her possession. The Government, as is their right, withdraw the card and it is nullified. Have the Government fulfilled their obligation not under the Human Rights Act, as we have been invited to do, but under the European convention, as the noble Lord, Lord Pannick, reminded us? That, for me, is the crucial issue. It is crucial because the Government are required to declare that their legislation complies with the European convention. Can the Minister give that assurance?
My Lords, I wish to move that the House do adjourn to allow the noble Baroness the Minister to seek further advice so that the House may be allowed to hear the response that she should have given to noble Lords following her commitment on Report. I should like to move that further consideration of Motion A be adjourned.
My Lords, it may be for the convenience of the House if I make a brief business statement at this point. With the consent of the usual channels, it is proposed that we should first continue with the normal business on the Order Paper, which means that we will now deal with the Second Reading and remaining stages of the Consolidated Fund Bill, which I understand are merely formal. We will then begin Second Reading on the Loans to Ireland Bill and take the first three speakers; that is, my noble friend Lord Sassoon, the noble Lord, Lord Liddle, and my noble friend Lord Newby. The proposal is that the House will then adjourn proceedings on Second Reading so that we might return to consideration of the proceedings on the Identity Documents Bill, at which point I will invite my noble friend Lady Neville-Jones to make a statement to the House to clarify matters which have clearly been of great concern to noble Lords. I hope that this clarifies the issues. I appreciate that the Clerks and the Lord Speaker will advise on the words of procedure that I should now adopt.