52. Supplementary memorandum
submitted by JUSTICE
1. JUSTICE is an independent all party law
reform and human rights organisation which seeks to advance human
rights, justice and the rule of law. JUSTICE is also the British
section of the International Commission of Jurists.
2. We acknowledge that the question of identity
cards and an accompanying National Identity Register raise complex
issues of practical implementation, human rights and political
acceptability. We recognise that most members of society now carry
identification issued by private sources, such as banks, as well
as a variety of identification from the state.
3. We have, however, consistently doubted
the practicability and appropriateness of grand schemes for identity
or entitlement cards.1 We have backed more prosaic but, in our
view, more practical alternatives such as those set out in paragraph
8.3 of the Cabinet Office study on identity fraud including more
thorough checks on applications for identity documents and registers
of lost or stolen identity documents.2
4. There is no doubt that the National Identity
Register proposed in the Bill would represent a major invasion
of individual privacy. The information to be kept on the register
is set out in Schedule 1. It will even include details of second
homes. Access records will be kept of all use of the database
by third parties (paragraph 9). Individuals will not themselves
be able to access all details on their records, in particular
in relation to who has had access to them (Clause 14(4)). Furthermore,
the register will be freely available to the Security Services,
GCHQ, the National Crime Squad and the National Criminal Intelligence
Service following only a minimal test of relevance ("for
purposes connected to") (Clause 20(2)).
5. As an invasion of privacy, the European
Convention of Human Rights requires that the creation of such
a register be justified as a proportionate response to meet a
specific need. The European Court of Human Rights has found that
neither ID cards nor a personal identity number necessarily infringe
the provisions of the Convention.3 However, we are not convinced
that the present proposals meet the appropriate threshold in terms
of the ability to address a clearly perceived and articulated
need in a proportionate way.
6. We are concerned about a number of practical
matters, many of which have been widely canvassed but should be
restated, including the following:
(a) The enormity of the logistical undertaking.
In some London boroughs, the community charge revealed that there
is an annual turnover of addresses greater than 60%.4 Information
from the electoral register suggests that on average in London
40% of people change addresses each year.5 The Home Secretary
himself acknowledged to the Committee the difficulties encountered
by the passport office in 1996 and the CRB checks under the Labour
Government.
(b) The level of unreliability of the most sophisticated
current biometric checking procedures. The Cabinet Office found
that "around 10-15% of "genuine" people fail biometric
tests set at the highest level of corroboration".6 The British
Computer Society have warned that: "iris and fingerprint
scans are not necessarily unique for each individual, with almost
100 cases of naturally duplicated identifiers existing in the
UK".7 Accuracy rates will become crucial when magnified by
the intention to include the entire population in the Register.
(c) Public acceptability of the cost of biometric
cards. All the research indicates massive cost resistance. A widely
quoted MORI poll, taken on 21 September 2001, indicated 85% support
for identity cards. The relevant question was, however, placed
8th in a series of 15, with the proceeding seven relating to terrorism
and the final question asking if supporters of Osama bin Laden
should be prosecuted for inciting religious hatred. A later MORI
poll, dated 22 April 2004 and commissioned by an IT consultancy,
has also been widely quoted. It found 80% support. However, only
48% of those polled were prepared to pay for the card. Only 20%
were willing to pay more than £25. The Government's current
estimate for a stand-alone card is £35. The Head of Public
Sector at the IT consultancy, Detica, acknowledged: "actually
asking people to put their hands in their own pockets doesn't
appear to be a vote winner." (Detica Press Release, 22 April
2004). This is entirely consistent with the Home Office's own
findings that 49% of those polled were unwilling to pay anything
for an ID card and only 7% willing to pay more than £20.
(d) The cost to government. The Home Office
has provided only a partial estimate—at up to £3.1
billlion—of the total costs of the scheme because it has
not included the cost of purchase and installation of scanners
to read the ID cards. Privacy International have estimated this
at an additional £6 billion.8 In addition, major IT projects
seem invariably to overrun their budgets.
(e) The intrusiveness of registration. Everyone
in the country will have to attend a specific centre in order
to have their biometrics taken. This again is likely to test public
acceptability, particularly for those living outside the major
conurbations.
(f) The practical effect of the introduction
of identity cards in relation to ethnic minorities. Home Office
survey data indicates some degree of support for ID cards among
ethnic minority groups. However, two of the stated major purposes
of such cards are the control of illegal immigration and as part
of the fight against terrorism. The sensitivity of Muslim minorities
can be seen from their reaction to such things as the police poster
against terrorism (Guardian, 14 May 2004) where the use
of eyes in the poster has given rise to concern that there is
a reference to the use of the veil. Police officers would inevitably
be drawn to require the ID cards of those who appeared to be from
minorities which they saw as likely to be illegal immigrants or
potential terrorists. Comparisons will inevitably be drawn with
stop and search powers, figures relating to which are disproportionately
higher for ethnic minorities.9 Thus, in practice and inevitably,
certain ethnic minority groups are likely to find that they are
required to produce their cards more than white UK nationals.
It seems unlikely that this will not prove contentious.
(g) The magnitude of the implications of a mandatory
card. Everyone will have a computer-recorded trail of the use
of their card. Everyone will have to pay for a card—the
additional cost of which will be somewhat disguised for the holders
of passports and driving licences because of existing fees. Anyone
without their card will be liable to screening to establish their
identity against the database. In practice, everyone is likely
to be required to carry their card whether or not this is technically
mandatory in order to avoid inconvenience. No other major common
law country has sanctioned such a high level of intrusiveness
into the individual privacy of its subjects.
(h) ID cards seem unlikely to meet many of the
alleged needs for which they are being introduced. The Home Secretary
acknowledged before the Committee that their use against terrorism
is limited. So, too would be their use against illegal immigration.
It is difficult to see that the position of the illegal Chinese
workers discovered in Morecambe would have been any different
if an ID register had been in effect. Spain found its ID cards
useless in preventing the outrage in Madrid though it did apparently
help in identifying the victims. ID may inhibit—but will
undoubtedly not eliminate—identity fraud and they should
limit entitlement to public services. It seems unlikely that,
by reference to these objectives alone, they are cost-effective.
(i) Finally, we are concerned about the possibility
of "function creep". This is particularly so as the
Government's justification of the cards seems to vary considerably
in emphasis. It found public resistance to calling them "entitlement"
cards but yet the regulation of entitlement to state benefits
seems to remain a major objective and, indeed, the cards may prove
more effective in this regard than as guarantors of identity.
7. As a consequence of the above, we consider
that public support for ID cards should be regarded as highly
volatile. This was, of course, the case in Australia where an
initial passive acceptance turned into major opposition as the
details of actual implementation became clear.
8. The Home Office consultation paper and
the draft Bill offers an incremental programme for the development
of identity cards over a decade. The draft Bill indicates the
way in which the proposed two phases of the scheme will be introduced
and allows an overview of the Government's overall strategy. We
agree that it should proceed by way of careful piloting and incremental
expansion.
9. We acknowledge that the International
Civil Aviation Organisation has approved the use of biometric
information in passports and the United States' Enhanced Border
Security and Entry Visa Reform Act 2002 requires that countries
which are members of its visa waiver programme should have machine
readable passports including biometric information. We accept
the benefit of the UK being part of such a scheme and that "British
citizens will increasingly need to possess secure biometric travel
documents".10 We have, however, expressed our concern about
the safeguards on information passed between countries.
10. Passports must be supported by a database.
This can, however, remain separate. It does not need to be part
of National Identity Register as proposed in the Bill. Indeed,
an alternative approach would be an incremental approach to linking
discrete databases, the first stage of which would be a cleaning
up of information on the passports database and the introduction
of biometric identifiers; the second stage would be an extension
to driving licences; the third the introduction of a voluntary
card and the final stage, if thought appropriate, would be linking
the databases and a mandatory card.
11. The current Bill would be largely unnecessary
if a more incremental approach was taken to reform. Furthermore,
if the decision was taken to introduce the Bill at a later date
then two difficulties could disappear. First, a difficulty with
the Bill is that Parliament will be approving the introduction
of a mandatory card—at what would appear to be a highly
unpopular charge—which will apparently only be implemented
at the earliest in 2013. This should be acknowledged by the full
parliamentary legislative process, not simply a debate and vote
in both Houses as outlined in the Consultation paper. Parliament
needs to ratify such proposals only after the most intense scrutiny
and only at the time when the public will feel that they are directly
involved in the decision. 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. Thus, the Secretary of State has regulatory powers
to make orders:
— to alter the age of those who are
entitled to be entered into the Register (Clause 2(7));
— to alter the type of information
that is contained in the Register (Clause 3(4). Clause 3(6) requires
the draft of the order to be laid before Parliament and approved
by both Houses);
— designating the types of document
to be used "for the purposes of the Act" (Clause 4(1));
— for compulsory registration imposing
an obligation on the individuals described by it to be entered
in the Register (Clause 6 and under Clause 7 a draft of the order
has to be laid before Parliament and approved by both Houses and
the resolutions approving the draft are to be agreed more than
60 days after the draft was laid in Parliament);
— to require an individual to provide
information to be used to verify the information in the Register
(Clause 11);
— for the disclosure of information
concerning an individual entry in the Register without the individual's
consent in specified circumstances (Clauses 20—24 to security
and intelligence forces);
— to determine the level of all fees
to be paid in relation to each part of the scheme (Clause 37(1)
with the consent of the Treasury under Clause 37(2)).
12. We support the appointment of a Commissioner
to police the use of the register. However, we are unhappy with
the proposed National Identity Scheme Commissioner (Clause 25).
We question the extent of the powers to be given to the Commissioner.
The Commissioner is only given the limited power to report to
the Prime Minister both yearly and at other times (Clause 26).
The Commissioner is granted under clause 25(2) a power to review
the Secretary of State's powers under the Act to disclose information
recorded in the Register without the consent of the individual
to whom it relates. A statutory power to investigate and audit
the process, to include for example the registration for the cards,
the use of the Register and the way in which the cards are used
for public services, would ensure a more appropriate degree of
enforcement than simply that of "review". In addition,
though we can see the advantage of a specific Commissioner for
the national identity scheme and the attraction of a senior judge
in the office, we prefer an extension of the role of the existing
Information Commissioner (IC). The IC would view the national
scheme within the wider context of data protection and privacy.
Indeed, without such responsibility, the effectiveness of the
IC would be somewhat truncated.
13. The consequence of devolution means
that the use of the card to access public services will be different
around the country. In any event, procedures will have to exist
for those who have, for some reason, lost their card. Clause 15
states that regulations may be introduced for England to make
public services conditional on using an identity card, other evidence
of registrable facts or both. Clause 16 means regulations can
be introduced to disclose information contained in the Register
to those who provide a public service. It is not clear that the
public will find this a comforting protection against misuse of
facilities or a tiresome bureaucratic procedure which devolved
jurisdictions seem, at present, unlikely to implement.
14. The draft Bill introduces a variety
of new offences, both criminal and civil. The imposition of civil
penalties may not create "criminal martyrs", the reason
stated by the Home Secretary for the terminology being used. The
Secretary of State imposes the penalty upon an individual by way
of a notice (Clause 33) and also will assess an appeal against
an initial objection to the civil penalty (Clause 34). There is
also then provision for the penalty to be appealed to court (Clause
35) where the penalty may be cancelled, reduced or the appeal
dismissed. Whatever the language, these provisions are coercive
and, in essence and probably law, criminal.
15. Accordingly, we regard the draft Bill
as over-ambitious, and would urge caution as to how the Government
proceeds with the proposals.
May 2004
REFERENCES1
JUSTICE has previously responded to two previous
Home Office Consultation papers on the topic of identity, or as
previously proposed, entitlement cards, Entitlement Cards and
Identity Fraud, Cm 5557, July 2002 and Identity Cards:
The Next Steps, Cm 6020, November 2003 and has also published
a joint paper with the Institute of Public Policy Research in
1995 entitled Identity Cards Revisited.
2 Cabinet Office Identity Fraud: a study October
2002.
3 Renyntjens v Belgium App No 16810/90; 73 DR
136, Lundvall v Sweden App No 10474/83; 45 DR 121
4 HC Debates col 240, 22 June 1994, quoted in
Identity Cards Revisited, JUSTICE and IPPR, 1995
5 Gerald Vernon-Jackson, Local Government Association,
uncorrected evidence to the Home Affairs Committee, 10 February
2004, q250.
6 P61, Cabinet Office Identity Fraud: a study
July 2002
7 National Identity Register could be an expensive
flop, warns BCS, 20 January 2004.
8 Here's looking at you, Guardian 13 May
2004
9 Home Office figures released in March 2003
relating to stop and search powers showed that black and ethnic
people were eight times more likely to be stopped.
10 Home Office memorandum to Home Affairs Committee
inquiry on identity cards, January 2004
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