48. Memorandum submitted by
the Commission for Racial Equality
1. INTRODUCTION
1.1. The Commission for Racial Equality
(CRE) is a publicly funded, non-governmental body set up under
the Race Relations Act 1976. We work in both the public and private
sectors to encourage fair treatment for everyone, regardless of
their race, colour, nationality, or national or ethnic origin.
The CRE has a statutory duty to work towards the elimination of
racial discrimination, to promote equality of opportunity and
to promote good relations between people of different racial groups.
It also has a duty to keep the working of the Race Relations Act
1976 as amended under review and to submit proposals for amendment
to the Secretary of State for Home Affairs, either when required
to do so or when the CRE thinks it necessary.
1.2. With these roles in mind the CRE has
considered the likely impact on race equality and race relations
of the proposals in the Government's Legislation on Identity
Cards consultation paper[77].
The CRE responded to the Government's previous consultation on
this subject in January 2003[78].
This submission builds on some of the issues raised in the earlier
consultation response, but is also sensitive to political developments
since then, and the higher level of detail included in the draft
bill published on 26 April 2004. Two days after the bill was published
the Home Affairs Committee (HAC) issued a press release seeking
further written evidence to inform its own scrutiny of the draft
bill.
1.3. This submission to the HAC highlights
the CRE's initial observations regarding the substance of the
draft bill, and the principle of an ID cards scheme more generally.
It does not represent a comprehensive analysis, and it does not
draw a conclusion as to the advisability of the Government's plans.
It does however register some reservations about the likely impact
on race equality. Once the Commission has studied the details
of the draft bill further, a further response to the provisions
in the draft bill will be submitted direct to the Home Office
before July 20 and made available on the CRE website.
1.4. Broadly the draft bill proposes to:
— establish a database—the National
Identity Register, which will hold identity details of those people
registered and issued with a card;
— specify information that may be recorded
in the Register (including the biometric data) and the safeguards
to ensure this is only available to those with lawful authority;
— provide data-sharing powers to conduct
thorough background checks on applicants for identity cards so
as to make sure that the details they have provided are correct;
— establish powers to issue identity
cards. This includes designating existing documents (which could
include passport cards, residence permits for foreign nationals,
and photocard driving licences) as part of the identity cards
scheme. It also includes the power to issue `plain' biometric
identity cards;
— enable regulations to be made that
will specify how an application for an identity card should be
made and the information that must be produced to support an application;
— set out the safeguards to protect
an individual's data and define the exceptional circumstances
in which specified agencies, such as security and intelligence
agencies and law enforcement agencies could have information disclosed
from the Register without an individual's consent;
— provide safeguards over "function
creep" in terms of information that may be held on the card
or the Register;
— enable public and private sector
organisations to verify a person's identity by checking a card
against the National Identity Register, with the person's consent,
to validate identity and residential status before providing services;
— create new criminal offences around
the misuse of identity cards and other identity fraud issues and
provide a civil penalty for failure to notify changes affecting
the accuracy of an individual's entry on the Register;
— include enabling powers so that in
the future regulations can be made relating to the use of the
card scheme; and
— provide a power to set a date when
the scheme would become compulsory with a requirement to register
and be issued with a card and a civil penalty for failure to register.
2. THE PRINCIPLE
OF AN
ID CARD SCHEME
2.1. In its Next Steps[79]
paper of November 2003, the Government announced its intention
to build the base for a compulsory ID card scheme. The draft bill
sets out how it aims to proceed, and enables the move from a voluntary
to a compulsory scheme. However, there remain strong concerns
about the principle of introducing identity cards, and that the
Government has made a decision to proceed without setting out
a clear and compelling case for doing so. At a very minimum, the
government must convince all communities of two things:
(a) That the ID card scheme is a proportionate,
and cost-effective response to public policy problems, and can
be delivered.
(b) That a potential scheme would not entail
adverse effects for ethnic minority groups.
2.2. Before moving to the CRE's assessment
of the race equality implications of the draft bill, it is important
to revisit briefly the Government's justifications for the ID
card scheme. This is because the issues the government hopes to
tackle with ID cards are all pertinent for ethnic minorities.
There is a potential benefit to ID cards scheme in that they could
enable immigrants and other groups to authenticate their identities
(for accessing the labour market and public services where they
are entitled). However, ID cards, on their own, are not a complete
solution to all of the problems the Government has identified.
The Government has stated that most of the cost of the scheme
will be necessary if the UK moves to a biometric system for passports
and driving licences anyway. That should not be the overriding
factor in a decision to extend the scope of the scheme to tackle
illegal working and benefit fraud. It is debateable whether significant
portions of the proposed £3.1 billion cost of the scheme
could not be used in other ways to tackle the threat of terrorism,
for example by building links with local communities. Certainly
the potential benefit of ID cards is not the same for each problem
identified by the Government.
— Tackling terrorism and transnational
crime
2.2.1. The CRE is aware that advanced technology
and the increased mobility of finance and people worldwide make
it more difficult to authenticate and protect an individual's
identity today. Heightened public concern associated with the
growing national security threat is reflected in opinion polls
indicating that British people are more willing to sacrifice a
certain amount of liberty for greater security. The CRE appreciates
that in light of these threats, the Government must take measures
to face the challenges posed by those who would use identity theft
and fraud for terrorist activity, and allay genuine security concerns
shared by all of Britain's communities[80].
2.2.2. However, it is also critical that
threats posed by a few individuals do not translate into measures
that, especially since September 11, are perceived as being targeted
exclusively at Muslims or any other racial or faith community.
If the proposed scheme is to proceed, the Government has proposed
limited data sharing powers. It is encouraging that the draft
bill contains no general power to share data for purposes. Understandably,
the bill allows for disclosure in the interests of national security
and for preventing and investigating serious crime. Security and
intelligence agencies can increase their effectiveness in tackling
terrorism by focusing greater attention on improving community
relations. It is crucial to tackling the threat posed by extremists
from all communities. Foreign Secretary Jack Straw said earlier
this year that "It is more important than ever before that
we in government build a close relationship and dialogue with
Muslim communities."[81]
This positive engagement could easily be undermined by number
of high-profile arrests and detentions of Muslims that have led
to no charges or convictions[82].
Between 11 September 2001 and March 2004, there have been 561
arrests in the UK under the Terrorism Act. But up to the end of
January, only 100 of these had faced charges under this legislation,
leading to six convictions. It is therefore vital that safeguards
and guidance are in place to ensure that the practical use of
the ID register by the security agencies does not exacerbate the
intrusion that some communities feel (who believe they have unjustly
suffered in recent months), or heighten general suspicion of particular
groups unnecessarily.
2.2.3. At the same time, almost no empirical
research has been undertaken to establish clearly how identity
cards might effectively prevent acts of terrorism. A recently
published report[83]
has highlighted that of the 25 countries that have been most adversely
affected by terrorism since 1986, 80% have national identity cards,
one third of which incorporate biometrics. The research was unable
to uncover evidence that the presence of an identity card scheme
in those countries was seen as a significant deterrent to terrorist
activity. More crucially perhaps, a national identity card as
proposed by the Home Office, could only assist anti-terrorism
efforts if it were used by a terrorist who was eligible and willing
to register for one, if the person were using their true identity,
and if intelligence data could be connected to that identity.
At the very least, the government will have to consider the provision
in the draft bill that states that a foreign national need only
apply for an ID card if they are going to be in the country for
over three months. This provision would not effectively tackle
the threat of bombers for example who would need only a few days
in the country to plan and execute their plans.
— Allowing employers and service
providers to establish more easily whether people are entitled
to work, or to access services
2.2.4. As well as measures aimed at tackling
terrorist threats to national security, the CRE welcomes coordinated
efforts to disrupt the activities of international criminal gangs
responsible for people-trafficking and illegal working in unsafe
conditions. It is well documented that illegal working can have
a damaging effect on race relations, and unfairly disadvantage
sections of the legally employed workforce, many of whom are from
established ethnic minority communities[84].
The CRE understands therefore the importance of vigorously tackling
the problem to ensure that the process of integrating legitimate
newcomers to the UK is not undermined by tensions with established
communities. However, while addressing the issue will help build
confidence in the immigration and asylum system, there is no clear
evidence that ID cards solve the problems associated with low
prosecution rates for employing illegal workers. The government
has acknowledged difficulties in enforcing Section 8 of the 1996
Asylum and Immigration Act in its current form, and forthcoming
changes to it are necessary. However, if unscrupulous employers
do not check existing documentation because it is advantageous
for them not to, there is no guarantee that they will start checking
ID cards.
2.2.5. While the government should develop
an effective enforcement system to eliminate illegal working,
equal attention should be focused on ensuring that the proposed
scheme does not lead to discrimination—where employers choose
not to employ individuals from ethnic minorities altogether rather
than carrying out the relevant checks. The CRE therefore welcomes
the Government's commitment to work closely with employers organisations
and trade unions to make the checking the proposed ID card to
confirm an employee's eligibility to work a straightforward process.
The Application Registration (ARC) Cards, which replaced paper
identity cards for asylum seekers, have proven to be accepted
by asylum seekers and refugee communities as a secure form of
ID. The introduction of the card, although controversial in the
beginning, has improved a system which was too slow, vulnerable
to fraud and unfair both on local people and on asylum seekers.
It is possible therefore, that an ID card could also become quickly
accepted on the fight against illegal working.
2.2.6. However, the Government's proposals,
if they are to proceed, must ensure that those who are legally
allowed to work are not prevented from doing so by the slow updating
of information held on the ID register. Unemployment among refugees
of working age is around 36%, six times the national average[85].
Refugees and ethnic minorities are already disadvantaged because
of barriers to the labour market. The draft bill places a duty
on the individual to ensure that information about themselves
is accurate and complete, with a £1,000 civil penalty for
those who contravene this requirement. Where this information
relates to changes in immigration status allowing an individual
to work, the CRE trusts that the systems the Home Office put in
place for updating such information would not slow down access
to the labour market for affected groups.
2.2.7. There are also other options for
tackling illegal working. It is often suggested that a potentially
more effective approach to addressing illegal working would be
to ensure the effective enforcement of existing employment law—through
a statutory body responsible for monitoring employment practice,
for example[86].
An alternative approach would be to monitor illegal working as
part of the enforcement regime related to the national minimum
wage—since part of the concern about illegal working is
that exploited workers are not being paid the national minimum
wage. More stringent enforcement of employment law would target
disreputable employers who undermine the good practice of trustworthy
employers.
— Increasing confidence in the security
and integrity of our immigration controls, leading to a more cohesive
society
2.2.8. It is encouraging that the Government
continues to recognise that managed inward migration is of potential
value to the UK economy and society[87].
Many observers have highlighted the impossibility of knowing how
many people are illegally present in the UK[88].
It is debateable whether a compulsory national identity card scheme
would reveal significant numbers of such people. It is probable
however, given current experience, that many would be forced to
lead an increasingly underground existence. In the course of the
debate about ID cards, very little has been said by the Government
about assessing the impact on those who have been living and working
illegally in the UK for many years—particularly the impact
on the children of such people (who may be kept away from vital
non-emergency public services once the scheme becomes compulsory).
The entrenching of such an underclass would not be conducive to
building community cohesion.
3. RACE IMPACT
ASSESSMENT
3.1. The CRE welcomes the Home Office commitment
to a thorough race impact assessment of the ID card scheme. The
focus group work and polling of ethnic minority groups was a useful
starting point, and the inclusion in the draft bill at Annex C
of a partial Race Impact Assessment of the scheme reflects attention
paid to key issues of concern that have emerged over the last
few months.
3.2. Although the Government has highlighted
opinion polls showing that four out of five people support the
introduction of ID cards, Home Office research on public perceptions
of identity cards also showed that ethnic minorities, when consulted,
did not embrace the idea of identity cards, and were more likely
to have reservations than the White British population[89].
3.3. The CRE notes that nothing is mentioned
in the race impact assessment about the pilot scheme that is currently
underway to test the operation of the scheme among 10,000 volunteers.
The CRE anticipates that the Home Office is monitoring all aspects
of the pilot for its impact on race equality, and that it will
publish the results ahead of any further decisions about the ID
card scheme.
3.4. Reservations about ID cards are based
largely on the historical operation of policing checks.[90]
These are substantiated by statistical evidence of continued racial
bias in the way stop and search operates. The CRE welcomes, therefore,
that the draft bill provides a specific prohibition on introducing
regulations that would require a card to be carried at all times.
If the scheme is to have the confidence of ethnic minority groups,
the production of comprehensive codes of practice for raising
awareness of the scope of police powers is crucial. However, equally
important is 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. There is
no lack of guidance on stop and search, but Home Office figures
show that black people continue to be eight times—and Asian
people three times—more likely to be stopped and searched
than their white counterparts. There is scope for police officers
to use ID cards to inconvenience ethnic minorities unnecessarily,
and authorities in France and Germany have been accused of discriminating
against ethnic minorities with on the spot requests for ID cards
even where this is forbidden.[91]
While the draft bill specifically addresses the powers of police
officers in relation to ID cards, there is nothing similar outlined
for other law enforcement agencies for whom relations with ethnic
minority communities have been uneasy.
3.5. The CRE is concerned that the Government,
should it decide to continue with the scheme, intends to take
a two-phase approach which makes having an ID card compulsory
for foreign nationals resident in the UK for more than three months.
It remains to be seen whether this provision is discriminatory
to foreign nationals under UK race relations legislation. However,
the CRE is concerned to some degree about the message this approach
sends out to the public; one that suggests that foreigners are
second-class people within society, and can be treated as such.
This would not promote good relations between different national
or ethnic groups. It should also be remembered that this two-phase
approach will affect many members of long established ethnic groups
in the UK who have either chosen not to take up British citizenship,
or cannot because dual nationality is not allowed in their country
of birth. One solution is to make the scheme mandatory for everyone
at an earlier point.
3.6. The Government has acknowledged concerns
about the amount of data that could be included in the ID register
and on the face of any card. The CRE welcomes the stringent approach
to specifying in Schedule 1 of the draft bill, the information
that may be included in the scheme[92].
The Government has signalled that "the level of information
to be held on the National Identity Register and on the face of
the card `will not be significantly more than that recorded now
for the issue of passports'".
3.7. CONCLUSION
— There is a potential benefit to an
ID card scheme to the extent that it could provide an easier way
for immigrants to authenticate their identities for accessing
the labour market and public services where they are entitled.
— However, ID cards, on their own,
are not a complete solution to all of the problems the Government
has identified.
— The convenience factor (of extending
current plans in place for developing biometric passports and
driving licences) should not be the overriding reason for extending
the scope of the scheme to tackle other perceived problems.
May 2004
77 Referred to from here on as the `draft bill', consultation
paper Cm 6178 is available on the Home Office website at http://www.homeoffice.gov.uk/docs3/identitycardsconsult.pdf Back
78
CRE (2003) Response to the Government's Entitlement Cards
and Identity Fraud consultation paper http://www.cre.gov.uk/downloads/docs/idcards.doc Back
79
Home Office (2003) Identity Cards: The Next Steps (Cm
6020) Back
80
BBC (2004) Muslims urged to fight terror http://news.bbc.co.uk/1/hi/uk/3586565.stm Back
81
Speaking at the Muslim News Awards 31 March 2004. Back
82
BBC (2004) Hundreds arrested, handful convicted http://news.bbc.co.uk/1/hi/magazine/3290383.stm Back
83
Privacy International (2004) Mistaken Identity: Exploring
the Relationship Between National Identity Cards & the Prevention
of Terrorism http://www.privacyinternational.org/issues/idcard/uk/id-terrorism.pdf Back
84
TUC (2003) Overworked, underpaid and over here-Migrant workers
in Britain. Back
85
DWP (2002) Refugees: Opportunities and barriers in employment
and training http://www.dwp.gov.uk/asd/asd5/rrep179.asp Back
86
CAB (2004) Nowhere to Turn http://www.citizensadvice.org.uk/docks/nowhere-to-turn0204.pdf Back
87
Speech by Tony Blair on to the Confederation of British Industry
on migration (27 April) http://www.number-10.gov.uk/output/page5708.asp Back
88
Home Affairs Select Committee (2004) Asylum Applications:
Second report of Session 2003/4 http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmselect/cmhaff/218/218.pdf Back
89
Home Office (2003) Public Perceptions of Identity/Entitlement
Cards http://www.homeoffice.gov.uk/docs2/qualitative-research031111.pdf Back
90
Home Office (2003) Public Perceptions of Identity/Entitlement
Cards p26. Back
91
Liberty (2004) The Government's ID Card Proposals: Submission
to Home Affairs Committee http://www.liberty-human-rights.org.uk/privacy/id-card-oral-evidence-feb-04.pdf Back
92
The information would include a person's name, address, date
and place of birth and nationality, immigration status (for third
country nationals), biometric data and head and shoulders photograph.
Ethnicity data will not be recorded on the register or on the
face of the card. Back
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