Section 18: Prevention and detection of crime

127     This section sets out other circumstances in which information from the Register may be provided without consent of the registered person. Subsection (1) provides a power for this provision so long as it is authorised in this section and section 21 is complied with.

128     Subsection (2) authorises the provision of information (other than audit log information) without consent for any of the purposes specified in sections 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (which include provision for disclosing information for the purposes of criminal investigations or proceedings overseas), but only if section 21 is complied with.

129     Subsection (3) allows the Secretary of State to prohibit the provision of information without consent for use in overseas proceedings (under the Anti-terrorism, Crime and Security Act 2001) as specified in section 18 of that Act (which allows the Secretary of State to give a direction that would prohibit the provision of information that could be used for the purposes of any overseas proceedings that would otherwise occur under section 17 of that Act) e.g. the Secretary of State might do this if he considered that it would be more appropriate for these proceedings to be conducted in a United Kingdom court.

130     Provision of information falling within paragraph 9 of Schedule 1 (audit log information), is authorised if it is to the persons listed in section 17(3) to (5) of this Act and is for purposes connected with preventing or detecting serious crime or if it is authorised under section 18(2) for use in overseas criminal investigations or proceedings, and is concerned with the prevention and detection of serious crime. This applies a higher threshold where the information being disclosed relates to the audit log rather than simply to static information about name, address etc.

131     "Serious crime" is defined in section 42 with reference to the Regulation of Investigatory Powers Act 2000 which defines serious crime as a crime that "(a) involves the use of violence, results in substantial financial gain or is conducted by a large number of persons in pursuit of a common purpose, or (b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".

Section 19: Correcting inaccurate or incomplete information

132     This section provides a power to provide information from the Register to a person or organisation who has supplied information (including but not restricted to information provided under section 9) to help verify an entry in the Register where information provided appears to be inaccurate or incomplete. For example, where it appears that the organisation that supplied the information has an out of date or inaccurate address held on its records.

133     Subsection (1) sets out the circumstances in which information may be provided under this section. Under subsection (2), the Secretary of State may give to someone who has provided incomplete or inaccurate information, information about how it is inaccurate or incomplete and what is in fact recorded. Again, section 21 must be complied with (subsection (3)).

134     Subsection (4) defines what is meant by providing information about an individual for verification purposes.

Section 20: Power to authorise provision of information in other circumstances

135     This section provides (Subsection (1)) that where there is no authorisation under sections 17 to 19 the Secretary of State may nevertheless provide information without consent where an order has been made specifying or describing the information, to a public authority so specified or described, for purposes so specified or described as long as any requirements under section 21 are complied with. The Secretary of State's power to authorise the provision of such information is restricted to circumstances where the provision is necessary in the public interest (subsection (2)). This order (subsection (3)) is subject to an affirmative resolution procedure. The information which can be provided is limited to information not falling within paragraph 9 of Schedule 1 (the audit log information).

Section 21: Rules for providing information without individual's consent

136     Subsection (1) provides that provision of information in paragraph 2 of schedule 1 (photograph, signature, fingerprints or other biometric information) under sections 17 to 20 may only be authorised where the Secretary of State is satisfied that it was not reasonably practicable for the person to have obtained the information by another means. For example, if fingerprint information is recorded on the Register, the police would first have to search their own fingerprint records before requesting information to be provided from the Register.

137     Subsections (2) to (4) allow the Secretary of State to make regulations imposing requirements for providing information under sections 17 to 20, such as specifying the persons who may make a request for information and how it is to be made and authorised before any information is provided under sections 17 to 20.

138     Subsection (5) allows the Secretary of State to make regulations setting out the rank, office or position of people who would be authorised to receive information on behalf of those persons listed in sections 17 to 20. For example, a police officer of a specified rank may be authorised to be provided with information on behalf of a chief officer of police.

139     Subsection (6) in effect obliges the Secretary of State to make that portion of the regulations which sets up an accreditation system, because provision of information under sections 17 to 20 will not be lawful unless the recipient has been accredited or is referred to on the face of the Act, e.g. a chief officer of police.

140     Regulations under section 21 will be subject to the affirmative resolution procedure (subsection (7)).

Supervision of operation of Act

Section 22: Appointment of National Identity Scheme Commissioner

141     This section establishes a National Identity Scheme Commissioner to oversee the operation of the identity cards scheme and the National Identity Register including the uses to which ID cards are being put and the provision of information held on the Register.

142     The Secretary of State is under a duty to appoint a National Identity Scheme Commissioner under subsection (1). Subsections (2) and (3) set out the functions of the Commissioner. Subsection (3) clarifies that the Commissioner must review in particular the extent to which arrangements for the National Identity Register ensure the confidentiality and integrity of information recorded on the Register as well as the arrangements made for dealing with complaints. Subsection (4) sets out the matters which will not be part of the Commissioner's functions such as appeals against civil penalties, which will be dealt with by the civil courts, criminal offences which will be dealt with by the criminal courts, and the verification powers for passports under section 38. The provision of information to the intelligence and security agencies will also not fall within the remit of the Commissioner but will fall under the jurisdiction of the Intelligence Services Commissioner as provided for in section 24.

143     It is the duty of every official in the Secretary of State's department to provide the information the Commissioner requires to carry out his functions (subsection (5)).

144     Subsection (6) sets out that the Commissioner should hold office in accordance with the terms of his appointment and provisions should be made for him to be paid such allowances as the Treasury may determine out of money provided by Parliament.

145     Under Subsection (7) the Secretary of State is under a duty, after consultation with the Commissioner, and subject to the approval of the Treasury as to numbers, to provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions. The Commissioner will be a public authority for the purposes of the Freedom of Information Act 2000 (subsection (8)).

Section 23: Reports by Commissioner

146     Under subsection (1) the Commissioner is under a duty to report after the end of each calendar year to the Secretary of State. There is also provision at subsection (2) for the Commissioner to report at any other time regarding any matter related to the carrying out of his functions.

147     Under subsection (3) the Secretary of State is under a duty to lay before Parliament every report received from the Commissioner. Where the publication of a particular matter in a report would be prejudicial to national security or the prevention and detection of crime, the Secretary of State may, after consultation with the Commissioner, exclude it from the report laid before Parliament (subsection (4)). In those circumstances, in accordance with subsection (5), the Secretary of State would need to lay a statement before Parliament that a matter had been excluded.

Section 24: Jurisdiction of Intelligence Services Commissioner and Tribunal

148     This section amends the Regulation of Investigatory Powers Act 2000 which sets out the functions of the Intelligence Services Commissioner and the Investigatory Powers Tribunal. The effect of the amendment is to add to their functions oversight of the provision of information held on the Register to the intelligence and security agencies.

Offences

Section 25: Possession of false identity documents

149     This section creates new criminal offences relating to the possession of false identity documents. Subsections (1) and (2) set out the circumstances in which a person is guilty of an offence if he is in possession of a document which he knows or believes to be false or a genuine document that has been improperly obtained or relates to someone else. To be guilty of the offence the person must have the intention that the document be used for identity fraud.

150     Subsections (3) and (4) create a similar offence in relation to the possession of equipment which is designed or adapted for making false identity documents. Subsection (6) sets out the maximum penalties for such offences as being 10 years imprisonment or a fine or both.

151     Subsection (5) makes it an offence for a person to have in his possession, without reasonable excuse, a false identity document or a genuine document that has been improperly obtained or relates to someone else, or equipment used for making false identity documents. Unless there is a reasonable excuse, these offences apply irrespective of any intent to use the documents or equipment. Subsection (7) prescribes a maximum penalty of 2 years imprisonment, a fine or both.

152     Subsection (8) defines 'false' as being false within the meaning of Part 1 of the Forgery and Counterfeiting Act 1981. It then defines an 'improperly obtained' document as being one in relation to which false information was provided in the course of the application procedure.

153     Subsection (9) states that the definition of "false" in subsection (8)(a) does not apply in the application of this section to Scotland because Part 1 of the Forgery and Counterfeiting Act 1981 does not apply in Scotland.

154     Subsection (10) applies the definition of "identity document" in section 26 for the purpose of these offences.

Section 26: Identity documents for the purposes of s. 25

155     Subsection (1) defines what is meant by an "identity document" for the purposes of this Act, and includes an ID card as well as other existing identity documents issued within or outside the UK. This list may be amended by order subject to an affirmative resolution procedure (subsections (4) and (5)).

156     Subsection (2) defines what is meant by an "immigration document" for the purposes of this Act.

157     Subsection (3) defines what is meant by a "UK driving licence for the purposes of this Act".

Section 27: Unauthorised disclosure of information

158     This section creates a new criminal offence of disclosure without lawful authority of information held on the National Identity Register.

159     Subsections (1) and (2) set out the circumstances under which a person is guilty of such an offence and defines the persons covered by this offence as including those involved in the establishment or maintenance of the Register, the issue and manufacture etc of ID cards, or the carrying out of the Commissioner's functions.

160     Subsection (3) defines what is meant by "lawful authority" for the purposes of this section. For example, there is lawful authority to disclose if the disclosure is authorised by this legislation or required by a court order.

161     Subsection (4) states that a person has a defence if he can show that he believed, on reasonable grounds, that he had lawful authority to disclose the information.

162     Subsection (5) sets out the maximum penalty for the offence as 2 years imprisonment or a fine or both.

Section 28: Providing false information

163     This section creates a new offence of providing false information for purposes connected with securing an entry or modification of an entry on the Register or obtaining for himself or another person an ID card.

164     For the purposes of this section, false is defined in section 42. False information includes information containing inaccuracies or omissions that tend to mislead. Subsections (1) and (2) set out the circumstances under which a person is guilty of the offence. These are that he knows or believes the information is false or is reckless as to whether or not it is false. Subsection (3) sets out the maximum penalty for the offence as 2 years imprisonment, a fine or both.

Section 29: Tampering with the Register etc.

165     This section creates an offence of tampering with the Register. Subsection (1) defines the offence as engaging in any conduct that causes an unauthorised modification of information in the Register. Subsection (2) defines the requisite intent for the offence as intending to cause a modification of information, or being reckless as to whether or not the conduct will cause such a modification. Subsection (5) defines an "unauthorised modification" as taking place if someone is not himself entitled to determine if the modification may be made and he does not have consent to the modification from a person who is so entitled. Subsection (6) provides a defence where the maker of the unauthorised modification reasonably, albeit mistakenly, believed he was authorised to make it. Subsection (9) provides that conduct includes acts and omissions, and modification includes a temporary modification.

166     Subsection (3) makes it clear that modification of information includes cases where someone's conduct contributes to the modification of information, or where it makes it more difficult or impossible for such information to be retrieved in a legible form, or where the conduct contributes to making the retrieval more difficult or impossible. However, this is not intended to apply to simple withdrawal of labour, for example in the case of lawful industrial action by staff responsible for operating the Register.

167     Subsection (4) makes it clear that it does not matter whether any or all of the relevant conduct took place in the United Kingdom, or whether or not the person concerned was a British citizen.

168     Subsection (7) gives the maximum penalty for the offence as imprisonment for a term not exceeding ten years, or a fine, or both.

Section 30: Consequential amendments relating to offences

169     Subsection (1) extends the usual jurisdiction of the courts in England and Wales for the offences in section 25. Subsection (5) extends the usual jurisdiction of the courts in Northern Ireland for the offences in section 25.

170     Subsection (2) adds the false documents offence (section 25) to section 31(3) of the Immigration and Asylum Act 1999 giving a specific defence for refugees with false documents. This is of particular relevance as those who destroy any false documents will commit an offence under section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

171     Subsection (3) adds the false documents offence (section 25) to section 14(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This gives immigration officers power to arrest without warrant for the offence and ancillary powers to search for and seize documents.

172     Subsection (4) makes the offences under sections 25 (5), 27 and 28 arrestable in Northern Ireland.

Civil penalties

Section 31: Imposition of civil penalties

173     This section sets out the way in which civil penalties under the ID cards scheme will operate. A code of practice will be published as required under section 34 and this will set out that the civil penalty regime is not intended to be punitive or revenue raising. Rather it is intended to ensure compliance with the terms of the Act. The code of practice will make it clear that where there is good reason for a failure to comply or in cases where the requirements of the Act are belatedly complied with, then it will normally be appropriate to waive the penalty.

174     Where the Secretary of State is satisfied that the person is liable to a civil penalty as set out in the legislation, the Secretary of State may issue in the prescribed manner a notice to the defaulter, setting out why the penalty is being imposed, the amount of the penalty, the date by which the penalty must be paid, how payment should be made, setting out the steps the defaulter may take if he objects and finally explaining the powers to enforce the penalty (subsection (3)). The amounts of the penalties specified in the Act are maximum penalties. The actual amount imposed will be determined on a case by case basis and in accordance with the code of practice.

175     The date by which the payment is required to be made cannot be less than 14 days after the notice is issued (subsection (4)).

176     A penalty imposed by this section must be paid in the manner described by the notice and if it is not paid, the amount is recoverable by the Secretary of State via the civil courts. When recovering the penalty no question may be raised as to whether the defaulter was liable to the penalty, whether the imposition of the penalty was unreasonable or as to the amount of the penalty. Those matters should be raised on an objection to the Secretary of State under section 32 and/or an appeal to the civil courts under section 33.

Section 32: Objection to penalty

177     Section 32 sets out the steps to be taken if the recipient of the notice objects to the imposition of the civil penalty.

178     A recipient of a notice of a penalty may give notice to the Secretary of State that he objects to the penalty. This must include what he objects to and why. This "notice of objection" must be made in the prescribed manner and before a date to be prescribed (subsections (1) and (2)). The grounds on which an objection can be made are that the person was not liable to the penalty, that the circumstances of the contravention make the imposition of a penalty unreasonable, or that the amount of the penalty is too high.

179     The Secretary of State must consider the notice of objection and will determine whether to: cancel the penalty; reduce it; increase it or confirm it (subsection (3)). The Secretary of State must not enforce a penalty in respect of which he has received a notice of objection, until he has considered the objection and notified the objector of the outcome (subsection (4)).

180     This notification of outcome must be given in the prescribed manner, by a prescribed date or if the objector agrees by the end of a longer period (subsection (5)).

181     If, after consideration, the Secretary of State increases the penalty, a new notice must be issued under section 31. If the penalty is reduced, the objector must be notified accordingly.

Section 33: Appeals against penalties

182     This section sets out the process of appealing against penalties. Under subsection (6) a person does not have to object to a penalty under section 31 before making an appeal to the court under this section.

183     The grounds of the appeal are set out in subsection (1). They are the same as the grounds for making an objection under section 32. Subsection (2) ensures that there will be a time limit to any appeal.

184     The appeal will be a re-hearing of the decision of the Secretary of State to impose a penalty (subsection (4)). Under subsection (5) the court may consider all matters it considers relevant.

185     The Court may decide to cancel the penalty, reduce the penalty or uphold the penalty under subsection (3).

186     Subsection (7) specifies which courts may hear an appeal.

Section 34: Code of practice on penalties

187     This section sets out the provisions relating to the code of practice on penalties.

188     The Secretary of State is under a duty to issue a code of practice setting out the matters that will be considered when determining whether to impose a civil penalty and if so the amount to be imposed (subsection (1)). He must have regard to the code when imposing a penalty or considering a notice of objection (subsection (2)). A court must also have regard to the code when determining any appeal (subsection (3)).

189     Before issuing the code, a draft must be laid before Parliament and members of the public must be consulted about it. It then comes into force as specified by order (Subsections (4),(5) and (6)). On the first occasion on which an order is made bringing the code into force it will be subject to the affirmative resolution procedure. Any subsequent orders (for revisions to the code) will be subject to the negative resolution procedure (subsections (9) and (10)). An initial indicative draft of what the code might cover and referring to the Identity Cards Bill as introduced to the House of Lords in October 2005, was published in December 2005 and a copy placed on the identity cards website at www.ips.gov.uk.

Fees and charges

Section 35: Fees in respect of functions carried out under Act

190     This section makes provision for the payment of fees.

191     Subsection (1) enables fees to be set for:

• applications for entries to be made in the Register, for their modification or the issue of ID cards;

• making or modifying entries;

• issue of ID cards;

• applications for provision of information contained on the Register;

• provision of such information;

• applications for confirmation of any information recorded;

• the issue or refusal of such a confirmation;

• applications for the approval of a person or apparatus (the accreditation);

• the grant of such approvals.

192     Subsection (2) allows regulations to be made allowing the payment of fees by instalments, for example schemes such as saving stamps.

193     Subsection (3) allows the Secretary of State in prescribing fees under subsection (1), to take into account the wider costs associated with the ID cards scheme. For instance, a charge may need to cover not just the issue of an ID card but also the costs of updating the Register when details such as address change, which may not necessarily incur an additional fee. This subsection also gives a power to charge different fees in different circumstances, to allow for example for a reduced fee for some cards or to cross-subsidise between different cards. Subsection (3)(d) also includes a power to take into account the cost of issuing ID cards in connection with the issue of designated documents. Subsection (3)(e) allows for expenses incurred in the provisions of consular services to be taken into account in setting fees, for example where a card was valid for travel this might be appropriate.

194     Subsection (4) provides that Treasury consent is required before regulations are made under subsection (1).

195     Subsection (5) allows for the fees for designated documents to cover the costs of dealing with matters under this Act (i.e. the Register and ID cards) when those matters are dealt with in relation to applications for, and the issuing of, designated documents. For example, charges for passports could be made using existing powers, and include the costs associated with the ID cards scheme.

196     Subsection (6) gives the Secretary of State the power to raise fees over a period which he thinks appropriate, which could be any time after the commencement of the power to charge including in advance of the introduction of ID cards.

197     Subsection (7) provides that on the first occasion that regulations are made on fees under subsection (1), the regulations will be subject to the affirmative resolution procedure. Subsequent regulations varying or adding to the fees would also be subject to the affirmative resolution procedure, except when the fee increase is only to take account of inflation. Those inflationary fee increases would be subject to the negative resolution procedure.