House of Commons - Home Affairs

Select Committee on Home Affairs Fourth Report

5 THE DRAFT BILL

221. In the time available we have not been able to scrutinise each clause of the draft Bill. We have taken evidence from a range of witnesses on a number of its provisions, but we do not pretend that our consideration of the draft Bill has been as detailed as we would have wanted.

222. Before considering the detail of the draft Bill, we note that, as currently drafted, it goes far wider than would be needed to introduce a simple system to establish and demonstrate identity. The draft Bill gives the Government powers to require and register a wide range of information not obviously needed to establish identity. It gives a wide range of organisations access to that information and to the audit record of when and by whom the National Identity Register has been accessed, so giving information on key actions of individuals. While the draft Bill undoubtedly enables these actions to be taken in the fight against serious crime or terrorism, it allows for far wider access to the database than this justifies. In particular, given the lack of clarity about the aims of the identity card, to leave so much to secondary legislation is unacceptable.

223. Furthermore, the practical application of the scheme is unclear. The Home Office have told us that in the vast majority of cases involving other departments they expect them to make use of the identity verification service offered by the scheme. This means checking that information provided by an individual matches that on the National Identity Register rather than requesting any additional information from the Register.[174] Presumably the Government has the same expectation of the use of the Register by the private sector. We also note that the Government intends that some privatised organisations should be treated in the same way as public sector bodies. But nowhere in the draft Bill are the conditions for access to the Register spelt out. Clause 14, for example, provides for Regulations governing disclosure of information with the consent of the individual concerned. But it is conceivable that in the compulsory stage, when a private organisation would be free to require presentation of an identity card, that organisation could make it a condition of providing its services that an individual consent to give it access to the full range of information on them in the Register, and not just to the data needed to check identity.

224. It is unacceptable that basic questions about the degree of access to the National Identity Register should be left to secondary legislation. The Government must clarify what access will be given to public and private sector bodies, and under what circumstances. Once identity cards are compulsory, there is a significant danger that the concept of consent to disclosure of information will in practice be eroded, unless there are clear statutory safeguards against improper access to the Register.

Purposes of the Bill and the Data Protection Act: Clause 1 and Schedule 1

225. Witnesses criticised the purposes of the Bill as set out in Clause 1. The Information Commissioner took the view that the Government's assurances about function creep centred on information on the Register, rather than the use of the system in practice.[175] He added:

176

226. Dr Pounder, Editor of Data Protection and Privacy Practice, argued that the breadth of the purposes set out in Clause 1 meant that the protection offered by the Data Protection Act was minimal, because the relevance of the information gathered could not be assessed in terms of one organisation processing data for one particular purpose.[177]

227. Witnesses also questioned the relevance of the list of registrable facts. At our first oral evidence session, the Director of the Home Office Identity Cards Programme had said:

178

After the draft Bill was published, the Home Secretary confirmed to us that: "The only details that will be held are those that are required for verifying the identity".[179] But the Director of Liberty said:

180

228. The Home Office said that the Bill did not override the operation of the Data Protection Act and complied with the Data Protection Principles. The Home Office argued that information about past residential status would make an application to register easier to verify, while a record of past residential status would show length of legal residence in the United Kingdom, which could affect entitlement to free public services. In addition, such information, including updating of residential status, would provide the basis for an audit trail to help monitor the operation of the system, and might be releasable to the police in a criminal investigation.[181]

229. We note that whilst a range of data might be required to verify an application, it is not necessary for all that data to be retained on the National Identity Register. They could either be returned or, if necessary for audit purposes, held on a separate database. The Bill should be amended to restrict data held on the register to that information required to establish identity once the card has been issued.

230. The one exception would be information about immigration status. This is so central to the justification for the Bill that it would be useful and convenient to hold this on the central register.

231. The purposes of the draft Bill as set out in Clause 1 are very broad and the list of registrable facts is longer than those the Home Office has said are necessary to establish identity. Both the purposes of the Bill and the registrable facts should be strictly limited to establishing identity and immigration status, so as to ensure that the provisions of the Data Protection Act cover the operation of the scheme effectively.

232. It is not yet possible to be more precise about the list of registrable facts, because the aims of the scheme, and hence the requirements for information to be registered, are not sufficiently clear. As the Bill proceeds, the Government must set out its justification better.

233. Clause 1 should set out the aims of the scheme. A possible formulation might be: "to enable an individual to identify himself in order to gain access to public and private services or when required to identify himself for the purposes of law enforcement". Wording of this sort would establish a test against which the data to be stored and used could be tested. It would also guard against the type of function creep in which the state uses the register to identify individuals without amendment by Parliament.

234. Dr Pounder, Editor of Data Protection and Privacy Practice, noted that subsection 9 of Schedule 1 opened the possibility of unrecorded access to the Register.[182] The Home Office said that this was not the aim of the subsection, which was drafted to reflect the fact that not all the information listed in Schedule would be needed, and therefore some of it might not have to be recorded.[183] There should be explicit provision in the Bill that all access to the register must be recorded.

Registration and issue of cards: Clauses 2 and 8

235. Clauses 2(4) and 8(4) respectively cover the registration of and issue of cards to individuals who have not applied to register or who are not required to have an identity card. The Law Society considered that these clauses were not sufficiently clear about who was covered and suggested that they might apply either to failed asylum seekers or to allow people to register in the first, "voluntary" phase before they were obliged to do so. The Society's Head of Law Reform argued that the clauses granted powers that were too wide for the issues addressed.[184] Liberty were also concerned by the clauses, which, in their view, would permit the passing of regulations that obliged non-nationals who were not applying for either immigration or asylum to carry identity cards.[185] The Home Office said that Clause 2(4) was intended to cover cases such as failed asylum seekers, illegal immigrants or third country nationals intending to stay for less than three months whose passport had been surrendered for bail purposes. It might also prove useful to register biometric information from visa applicants who would be expected to obtain an identity card after staying in the UK for three months. Clause 8(4) might also cover such third country nationals, as well as British citizens who have lived overseas permanently.[186] We support the provisions in Clauses 2(4) and 8(4) that enable registration of failed asylum seekers and other similar cases, but recommend that the Home Office clarify the purposes of these Clauses in the Bill.

Information on the Register: Clause 3

236. Clause 3 provides that the only information on the Register is the registrable facts listed in Schedule 1, information needed to administer the scheme and information held at an individual's request (with official agreement), such as emergency contact details. The Law Society were concerned by the provision in the draft Bill that the Home Secretary could amend the list of facts in the Schedule, and hence the information required on the Register, by regulations.[187] The Home Office contended that this was necessary "to maintain the flexibility of the scheme" as, for example, technology changed. They also argued that the facts that information in Schedule 1 had to be consistent with the statutory purposes of the Bill and that any regulations would be subject to affirmative procedure in Parliament were effective measures against function creep. They also pointed out that only information held within the existing categories of information, as set out in Clause 1 (4) of the Bill, could be amended by regulations; any new category of information would require primary legislation.[188]

237. The statutory purposes of the Bill, as set out in Clause 1, are very broad and include "providing a record of registrable facts about individuals in the United Kingdom"; this is far from a significant protection against function creep. Clause 3 provides an acceptable mechanism for amending the information required to be held on the Register, but only if the statutory purposes of the Bill are clarified as we recommend.

Designated documents: Clause 4

238. Clause 4 provides for the Home Secretary to designate official documents as identity cards. The Home Office have made clear that these will be passports, driving licences, and plain identity cards for UK nationals and residence permits for foreign nationals. We have expressed our concerns about the lack of an independent analysis of the reasons behind this decision, or of its costs and benefits, in paragraphs 19 and 20.

Information required for registration: Clause 5

239. The Information Commissioner took the view that Clause 5 imposed an "open ended" requirement on applicants to provide information on registration, and argued that it should be possible to establish the sort of information that might reasonably be required, so that it could be specified in statute.[189] The Home Office considered that this would be unnecessarily restrictive, since precise arrangements would be decided after further preparatory work and testing of different options. They also argued that over time the application process might have to be changed.[190] It is practical to allow some flexibility over precisely which documents are required at registration and that these should be set out in secondary legislation. But the Bill should state that only those documents that are reasonably necessary to establish identity may be required. There should be a right of appeal to the National Identity Scheme Commissioner.

Obligatory registration: Clause 6

240. Clause 6 sets out penalties for failing to register when required to do so (£2,500 each time) and for failing to provide information (£1,000). It would come into full effect in the compulsory stage, but could be used to cover foreign nationals in the first phase of the scheme if it was decided this was desirable. It also provides the facility to phase in compulsory registration, for example by age group.

241. Liberty argued that the proposed penalties demonstrated that those who were not prepared to register would be dealt with harshly.[191] The Director of Liberty pointed out that continued refusal to register could attract multiple penalties, so that the sum would quickly rise above £2,500. She and the Director of JUSTICE believed that the penalties might be considered criminal, rather than civil, under the European Convention on Human Rights.[192]

242. The Home Office argued that providing for civil penalties gave greater discretion on whether to apply them. On the level of the penalties, they said that any financial penalty would need to be sufficient in order to encourage an individual to comply with their legal requirement to register with the scheme (rather than, for example, at a level at which the penalty could be paid as a way of avoiding registration). A further consideration was the need to ensure that a person could not evade registration by making an application to be registered but refusing to comply with any requirements that would help to confirm his or her identity prior to registration. The penalties proposed were consistent with these considerations and with the existing legal requirement to keep driving licence information up to date, which carried a maximum criminal penalty of £1,000.[193]

243. We note that the maximum fine for not having a TV licence is £1,000. Improper registration of birth attracts a maximum of £200 and, after 12 months, non-registration of death the same. Breaches of supervision, curfew, probation, and drug testing and treatment orders could attract maxima of £1,000 and contempt of court a maximum of £2,500.[194]

244. The proposed penalties are reasonable given their purposes and existing penalties for similar offences. We comment in paragraph 254 on the anomaly that failure to update a driving licence is a criminal offence. We suggested in paragraph 164 that it should be a duty on landlords to register tenants: there would also need to be a penalty for failure to do so.

The move to compulsion: Clause 7

245. The draft Bill provides for a move to compulsion through "a special super-affirmative process", short of primary legislation. This would entail the Government publishing its reasons for wanting to make registration compulsory and a proposal for how this would operate. The report would be debated and voted on in both Houses of Parliament and it could be modified by them. The Government would then lay a draft order consistent with its proposals, which would need to be approved by both Houses. If either House did not approve the proposal, or modified it in a way the Government did not like, the Government would have to start the process again.

246. JUSTICE were among the witnesses who believed that a move of this significance should not be taken without the most intense scrutiny and primary legislation. They also said:

"A vote now in relation to reforms to be implemented in a decade's time creates too distant an accountability to the electorate. Second, the current Bill is, of necessity, an enabling bill that does not specify what will be required in a decade's time."[

195

247. The Home Office argued that to have the debate over compulsion now gave a clear picture of the nature of the scheme and how it would apply, thus heading off accusations of proceeding by stealth. They said that there were also advantages for service providers, who would be able to plan investment in new business processes and technology, such as card readers, with greater confidence.[196]

248. It is unlikely that if full Parliamentary procedures were followed the Government would, as it fears, be accused of "proceeding by stealth". The move to compulsion is a step of such importance that it should only be taken after the scrutiny afforded by primary legislation: the proposed "super-affirmative procedure" is not adequate. We would, however, support the inclusion in the Bill of powers to enable the Government both to set a target date for the introduction of compulsion and, if necessary, to require agencies and other bodies to prepare for that date.

Renewal of identity cards: Clause 9

249. Clause 9 covers renewal of identity cards, where registration is obligatory, and provides for a penalty of up to £1,000 for failure to renew. We noted in paragraph 198 that although costings imply identity cards would be valid for ten years, the Government has not yet said what the validity of identity cards would be. Clause 9 is another reason for a clear statement before the Bill is published.

Issue of identity cards: Clause 10

250. Clause 10 covers procedures for issuing identity cards. We have observed in paragraph 193 that this is an area that is crucial to the security of the system: no one individual should have a level of access to the system that would enable them alone to issue a card. The Government should consider statutory provisions to ensure the integrity of the registration and enrolment system, as well as specific penalties for breaches of these provisions.

Accuracy of the Register: Clauses 11, 12 and 37

251. Liberty expressed concern over the provisions of Clauses 11 and 12, arguing that the Government had a poor record on accuracy of information held on databases and that an obligation to inform of any relevant change in circumstances, backed up by a penalty of up to £1,000, and possibly, given Clause 37, accompanied by a fee for any amendment, could place a considerable burden on those who lived in insecure or frequently changing accommodation.[197] The Information Commissioner noted what he described as "an open-ended requirement on unspecified third parties to provide information for application validation purposes" in Clause 11(1), which creates a duty to provide information to verify an entry on the Register.[198]

252. The Home Office argued that it was not unusual to require individuals to report changes in circumstances so as to maintain the accuracy of a database and instanced the DVLA, which requires drivers to report any changes in name or address, failure to do so being a criminal offence carrying a maximum penalty of £1,000.[199] The Home Office also said that it was the Government's intention that the costs of running the scheme be met from charging. No final decision had been taken on whether charges would be made for amendments to the Register, or whether amendment costs would be reflected in a higher initial fee.[200] The Home Office were unable to tell us how many prosecutions or convictions there had been over the past five years for failing to inform the DVLA of a change of address, since the offence shared a sub-classification code with sixteen others.[201]

253. It is reasonable to require individuals to report relevant changes in their circumstances, provided that the range of information they are required to update is not excessive and that they are able to check that the information held on them is accurate. We do not believe that there should be charges for updating information on the Register, since this would be likely to affect adversely the accuracy of the information held.

254. We find it anomalous that failure to update a driving licence should be a criminal offence, especially when failure to update the National Identity Register will not, and we note that the Home Office does not know how many prosecutions there have been for failing to update a driving licence. This offence should be reviewed in the light of the proposed legislation on identity cards.

255. Clause 11(1) could have significant implications for past and current employers, neighbours, landlords, family members and past spouses, all of whom might be required to assist in the identification of an individual. The Government should clarify the scope and limits of this clause on the face of the Bill.

256. The Law Society and the Chair of the Commission for Racial Equality questioned how the obligation to report changes of address would work in practice for the homeless, those fleeing domestic violence or groups such as gypsies and travellers.[202] The Home Office said that further work will be undertaken during the consultation on the draft Bill to deal with some of the issues raised by socially excluded groups such as gypsies and travellers, and that how to record address information of those without a fixed address had not yet been decided.[203] The practical application of Clauses 11 and 12 to socially excluded groups must be clarified as soon as possible. This should be done in such a way as to ensure that such groups are no further disadvantaged by the operation of the scheme. The Bill should contain legal duties on the Home Secretary to take into account special needs, such as health, in applying these clauses; and to establish a clear legal status in the primary legislation for those of no fixed abode.

257. The Chair of the Commission for Racial Equality called for a full Race Impact Assessment to be published with the Bill and another one at the time of the move to compulsion.[204] He argued that there was little hard evidence about the impact of an identity card scheme on different ethnic groups and communities in the United Kingdom, but experience in other European countries was not encouraging. He also pointed out, as noted in paragraph 139, that fears and perceptions of minority groups had important consequences for community relations. We agree with the CRE that the Bill should be accompanied by a full Race Impact Assessment and that there should be a further Assessment at the time of the move to compulsion.

Loss, theft or damage to a card: Clause 13

258. The Law Society were concerned by Clause 13, which they believed established "a very draconian measure about the failure to notify if the card has been lost, stolen or damaged", because subsection (1), which permitted the making of regulations that would require an individual to report if a card had been lost, stolen, damaged, destroyed or tampered with, did not contain a reasonableness defence.[205] Liberty took a similar line. The Home Office said that the regulations might incorporate such a defence.[206] A reasonableness defence to the offences that might follow from Clause 13(1) should be included on the face of the Bill, rather than left to regulations.

The right to see information held and disclosure of information: Clauses 14 and 24

259. Witnesses were concerned by what they saw as the removal by Clause 14(4) of an individual's right to see the audit trail of who had accessed his or her details and on what occasions.[207] The Home Office told us that this was drafted with the intention of preventing an individual being alerted to the fact that security and intelligence agencies had accessed their records, but said that it had become apparent that it might be possible to rely on existing provisions of the Data Protection Act, exempting disclosure where national security or the prevention or detection of crime are concerned.[208] The Bill should contain an explicit reaffirmation of the right of individuals to see both the data held on them and the audit trail of who has accessed those data and on what occasions, subject only to the national security and crime exemptions of the Data Protection Act.

260. Press for Change raised the possibility of restricting releasable information to prevent disclosure of, for example, a previous gender or previous names.[209] They were also concerned about the relation of the disclosure provisions, with and without consent, to the Gender Recognition Bill.[210] The Home Office agreed that there might be cases in which it would be necessary to restrict information and took the view that the rules for disclosure under Clause 24 would be in line with the provisions of the Gender Recognition Bill. They promised further consultations with the Department for Constitutional Affairs and other interested parties.[211] It is reasonable that there should be the possibility of restricting releasable information in certain cases. We welcome the Home Office's readiness to consult on the issue.

261. Earlier in this report, we referred to the different levels of security, from simple visual examination of the card to access to the National Identity Register, which the Home Office expects to be undertaken. Although it would not be possible to specify in detail all the circumstances in which different bodies might have access to the Register, we believe that the principle and tests of reasonableness should be placed on the face of the Bill.

262. The Bill might also allow individuals to limit access to certain data under certain circumstances. For example, a citizen might choose that addresses could not be released to all those who access the Register.

Power to make public services conditional on identity checks: Clauses 15 and 19

263. Clause 15 links production of the card to the provision of public services after the move to compulsion. In paragraphs 125-128 we have stressed the importance of Government departments checking identity in a systematic way, even before the introduction of identity cards. But this should not mean that identity cards in practice become obligatory before the move to compulsion. The Director of Liberty argued that a phased introduction of compulsion, for example by requiring foreign nationals to register for a card before UK nationals might lead to service providers being sued under Clause 19, which prohibits a card being the only way to access services before the compulsory stage.[212] The Home Office said that they were still consulting on the best way to enforce Clause 19.[213]

264. We welcome the provisions of Clause 19 prohibiting any requirement to produce an identity card before the move to compulsion.

Checks on the Register: Clause 18

265. Clause 18(4) provides that the Government must consult the public about proposals for regulating checks on the Register. We have stressed in this report the importance of a coherent system for checking eligibility to public services. It is therefore important that this consultation enable an informed public discussion of the issues.

Disclosure of information without consent: Clauses 20, 21 and 23

266. Several witnesses criticised the provisions of Clauses 20, 21 and 23, above all the sections relating to the security and intelligence agencies. They argued that both the range of authorities and the grounds for disclosing information without the consent of the individual concerned were too wide. They criticised in particular Clause 20(2) which permits access to the audit trail by the Security Service, the Secret Intelligence Service, GCHQ, the National Criminal Intelligence Service and the National Crime Squad "for purposes connected with the carrying out of [each organisation's] functions". The Information Commissioner, for example, told us that "the width of the provisions in clause 20(2) at the moment [..] effectively give[s] those services unlimited entitlement to the information for any purposes" and believed that not only the organisations, but also the purposes for which information was needed should be identified.[214]

267. The Home Office said that the security and intelligence agencies would only be able to receive information for their statutory purposes, as set out in the Security Services Act 1989, the Intelligence Services Act 1994 and the Police Act 1997. This would mean that, for example, the Security Service would only be able to receive information from the National Identity Register for the purposes of protecting national security, safeguarding the economic well-being of the United Kingdom and acting in support of police forces and other law enforcement agencies in the prevention or detection of serious crime. They argued that there might be circumstances in which information on the Register might usefully contribute to those agencies' aims even though not related to national security or crime, and pointed out that the agencies' access to the register would have to be authorised in accordance with the provisions of Clause 20 and would be subject to the oversight of the National Identity Scheme Commissioner.[215]

268. As noted in paragraph 222, there a number of cases in which it would be reasonable for the Government might wish to allow access to the National Identity Register without the consent of the individual concerned. These might include checking the last known address of a suspect, fingerprints from the scene of a crime, or travel or interactions with a range of government or private sector services. But this is a long step beyond the simple identity card system originally proposed.

269. We are not opposed in principle to access to the database and to the audit trail without the consent of the individual concerned. But we are extremely concerned by the breadth of the provisions of Clauses 20 and 23 and particularly by Clause 20(2) which would allow nearly unfettered access to the security and intelligence agencies. At a minimum, disclosures without consent should be limited to cases of national security or the prevention or detection of serious crime.

270. The Information Commissioner argued that Clause 20(5) which provides for disclosure of information other than the audit trail to a civil servant carrying out official functions, was very wide indeed, and added:

216

271. The Home Office said that Clause 20(5) was needed because it was not yet clear which Departments might need information from the Register and that Clause 23 provided flexibility to take account of possible future organisational changes to the bodies named in Clause 20 or to add other bodies, such as the emergency services.[217]

272. It is not acceptable to have as broad a Clause as 20(5) simply because the Government is unclear about its objectives.

273. The Bill should have explicit data-sharing provisions to make clear the relationship between the National Identity Register and other official databases. Some of the proposed databases have no statutory basis—this is unacceptable and needs to be addressed in further legislation.

Oversight of the scheme: Clauses 25 and 26

274. Witnesses criticised the proposed powers and remit of the National Identity Scheme Commissioner. The Information Commissioner argued that these fell well short of the level of independent supervision required, and was particularly concerned that even if the Commissioner discovered misuse there was no provision to require him or her to bring this to the attention of the individual affected or to provide any remedy.[218] Liberty criticised what they characterised as the Prime Minister's broad power to suppress details and said that the role of the Commissioner should extend to overseeing the operation of the registration and identification scheme as a whole, as well as any future extension of these powers through regulations.[219] The Director of Liberty also argued that the Commissioner should report directly to Parliament.[220]

275. The Home Office noted that it was envisaged that the scheme would be operated by an Executive Agency similar to the DVLA and UK Passport Service (which might indeed be made the lead organisation) and which would not require legislation; they argued that since these existing Agencies had no Commissioner and because there were no clauses on governance in the Bill, there was no need to expand the powers of the National Identity Scheme Commissioner. They also argued that the Commissioner's functions might be carried out by existing Commissioners such as the Surveillance Commissioner or the Intelligence Service Commissioners, who report to the Prime Minister.[221]

276. It is reasonable for the scheme to be operated by an Executive Agency similar to the DVLA or UK Passport Service. But we reject the argument that since their operations are not overseen by a Commissioner, neither should those of an identity card agency. We believe that because the identity card scheme would directly affect the daily lives of millions of people, and routinely involve sensitive and often highly personal information, oversight of its operation is utterly different to that of the DVLA or UK Passport Service. The National Identity Scheme Commissioner should report directly to Parliament. He or she should have powers of oversight covering the operation of the entire scheme, including access by law enforcement agencies and the security and intelligence services.

Possession of false documents: Clause 27

277. There are no provisions in Clause 27 to cover aiding and abetting the offences created, or conspiracy to commit them. It is possible that these can be dealt with through existing legislation, but we believe that it would be more sensible to cover them explicitly in the Bill.

Complaints: Clauses 34 and 35

278. The Information Commissioner told us that he would like to see provision for an individual, with reasonable cause, to challenge the operation of the system (rather than just the imposition of a penalty).[222] Similarly, the Commission for Racial Equality called for "effective and unbureaucratic recourse to an independent body that can investigate practical abuse of the scheme by individual police officers and other authorities at street level".[223] The Home Office said that it was their intention that an individual should be able to make a complaint about the operation of the scheme, but that as they intended the scheme to be run by an Executive Agency, there was no need to specify this in legislation. They added that complaints about disclosure could be heard by a tribunal such as the Investigatory Powers Tribunal. We welcome the Home Office's commitment to enabling complaints to be made about the operation of the scheme. The provisions to enable this must be effective, unbureaucratic and practical.

174 Ev 314 Back

175 Ev 284 Back

176 Q 750 Back

177 Ev 279 Back

178 Q 46 Back

179 Q 647 Back

180 Q 684 Back

181 Ev 309 Back

182 Ev 278-279 Back

183 Ev 316 Back

184 Qq 690-692 Back

185 Ev 294 Back