53. Memorandum submitted by
The Law Society
OBJECTIVES OF
THE IDENTITY
CARD SCHEME
Compulsory identity cards represent a shift
in the balance between the rights of the individual and the power
of the State that can only be justified on the basis that it represents
a proportionate response to a pressing social need. The benefits
from such a scheme must outweigh its impact on personal privacy.
The Society has consistently argued that the
case for a compulsory identity card scheme has not been made out
and has queried the cogency of the Government's arguments in its
favour. The publication of the draft Identity Cards Bill has not
allayed our concerns.
The Government has heralded a national identity
card scheme as the answer to identity fraud and health tourism,
crime, terrorism, illegal immigration and illegal working. It
has not, as yet, convincingly explained how a card scheme will
achieve these benefits. The Law Society has grave doubts that
it can do so.
The Government has not made the case that an ID
card scheme will combat identity fraud
History shows that all types of cards are forgeable
and forgery is linked to a profitable black market. We believe
these cards will be no different. Biometrics will make forgery
more difficult but not impossible. The false sense of security
in biometrics will make the card even more valuable.
The scheme may reduce the incidence of individuals
with multiple identities but we are not reassured by the Home
Secretary's statement that if people register in a false identity
"they'll have to keep that false identity for the rest of
their lives".[95]
Surely it will still be possible to claim that a mistake has been
made; it is not credible that the Home Secretary believes that
administrative or technological mistakes are impossible and that
the database and its supporting technology will be "perfect".
The Passport Office's recent pilot demonstrates that even with
biometrics this is not the case.[96]
The Government has not made the case that an ID
card scheme will combat illegal working
Employers who are currently willing to employ
people illegally, without National Insurance Cards, are likely
to continue employing people illegally without identity cards.
Once forged or improperly obtained cards were in circulation,
employers might have to request further identification in order
to verify that a card was genuine, thus obviating the point of
a national identity card.
The draft Bill fails to address and remedy the
complex procedures for overseas workers—individuals who
may be domiciled in the UK but reside in other countries for extended
periods of time—and individuals who have time limits attached
to their cards but are out of the country.
The Government has not made the case that an ID
card scheme will reduce crime, including terrorism
The Home Office consultation on Entitlement
Cards rightly acknowledged the fact that if the police were allowed
access to information from the central database it "might
cause public unease and lead to a lack of confidence in the overall
card scheme".[97]
If they do not have access it is difficult to see how the scheme
will help them to tackle crime. In any event, the real policing
challenge is to link criminals to their crimes, not to establish
a suspect's correct name and address.
Home Secretary David Blunkett has admitted in
his evidence to this Committee that he does not believe that an
identity card scheme will prevent terrorism.[98]
Spain's strong rules in relation to ID cards failed to prevent
terrorist activity in Madrid.
The Government has not made the case that an ID
card scheme will combat health tourism
The majority of people who are not able to get
on to GP lists tend to use hospital accident and emergency centres
for primary care. The Government has conceded that accident and
emergency treatment should not be subject to proof of identity.
THE LAW
SOCIETY'S
CONCERNS WITH
THE DRAFT
IDENTITY CARDS
BILL
The Law Society is concerned the draft Bill
leaves too much to secondary legislation. In particular, compulsion
should not be introduced without fresh Parliamentary debate and
primary legislation.
Registration
One of the stated purposes of the National Identity
Register is to provide a record of registrable facts about individuals
who are, or who have been, in the United Kingdom. We are concerned
about the extent of the definition of registrable facts under
clause (1)(4)(h) to include occasions on which the information
has been accessed. Such a data trail would contain privacy-sensitive
information and access to this information, we believe, goes beyond
the scope of the intent of the Register.
The Law Society is concerned about the provisions
in clauses 2(4) and 8(4) which provide the Government with the
power to enter individuals who have not applied for an identity
card into the National Register if their information is available.
Clause 5(2) states that any application for
a designated document must include either an application to be
entered in the National Identity Cards Register or confirmation
that the individual is already registered.[99]
We believe this clause, and the announcement that it may be compulsory
for third country nationals to register before the scheme becomes
compulsory[100]
is a disingenuous use of the term "voluntary". We feel
strongly that such provisions should either be deleted or specify
that they will only apply during the compulsory phase of the scheme.
We understand the rationale for obtaining information
about a Foreign National's eligibility to work and other specific
information accounted for under clause 5(3). However, we believe
that the vague nature of this clause may lead to misinterpretation
that the Secretary of State may obtain any type of information
for specific individuals. This may be seen as discriminatory if
not more clearly defined.
ID Cards
The Law Society queries the instances in which
the Government might issue an identity card to an individual who
is not required to have one.[101]
We are concerned that this provision could lead to the discriminatory
application of issuing identity cards. For example, although individuals
under the age of 16 are not required by the draft Bill to register
and have a card, the Government may decide that certain suspicious
individuals within that age group might be issued with a card
in order to acquire a data trail of their movements.
The Society continues to believe that the Government's
proposals fail to consider fully the challenges of certain vulnerable
populations. Schedule 1 lists various pieces of information about
an individual that may be recorded in the Register. One of these
is personal information—which includes addresses. Clause
12(6) provides a maximum penalty of £1,000 for failure to
notify the Secretary of State of any change of circumstances affecting
the information.
What information would be recorded for a person
who found him or herself homeless? Or someone fleeing a domestic
violence situation? Would such individuals be required to notify
the Government when changing temporary accommodation? If an individual
failed to do so, is it realistic he/she would be charged this
exorbitant fee?
The draft Bill takes no consideration of vulnerable
populations, people with chaotic lifestyles or the administrative
burden caused by individuals frequently updating information on
the register. Loss or theft of the card, or administrative failure,
could result in services becoming unobtainable to those who most
need them. This could also have a negative impact on vulnerable
and disadvantaged groups, such as those with complex or frequently-changing
personal information; homeless people; people suffering mental
illnesses; older people; ethnic minorities; people on low incomes;
immigrants and asylum seekers.
In France, a country with identity cards, there
exists a class of people who do not have identity cards (sans
papiers) and who therefore can not access basic services.
Privacy, Data Protection and Disclosure of Information
The Law Society has concerns about privacy,
data protection and disclosure of information. It is essential
that people have confidence that highly personal information about
them will be kept confidential. This includes information held
on the card, on the central register and a third type of information
which is generated every time the card is used—the data
trail.
Due to a history of difficult public IT projects,
the public has little faith in a large scale scheme without radical
(and expensive) investment in technology which has been tested
and demonstrated to be secure before any scheme comes into force.
The recent MORI poll results show that the public lack faith in
the Government to administer the scheme with 58% stating they
were "not confident" the Government could introduce
it smoothly.[102]
Clause 14 outlines the powers that the Secretary
of State has to disclose information recorded on any entry in
the register. Subsection (4) excludes information held within
Schedule 1, paragraph 9 which includes the occasions in which
a person has accessed an individual entry, modified the entry,
disclosed information, and the information identifying the person
who took such steps. The Law Society supports restrictions in
disclosure of the information contained on an individual's data
trail, but believe that individuals themselves should have the
opportunity to access all information held about them on the register,
including information contained within Schedule 1, paragraph 9.
The Law Society is extremely concerned about
the wide powers in clause 20(1) to disclose specific information
held on the Register without the consent of the registered individual.
We view the range of eligible authorities under clauses 20(2)
and 20(3) as too wide. We also believe that the authorisation
to disclose to a chief officer of police for the "prevention
and detection of crime" under clause 20(4) is far too wide.
We believe that the police could conceivably have information
routinely disclosed through the power of this clause.
The Society has concerns about the powers of
disclosure outlined in clause 22(2) which allows disclosure to
the person "providing the information any discrepancies between
it and the information recorded on the Register". Regardless
of whether the "person providing the information" is
an individual representing him/herself to an organisation for
entitlement or an organisation requesting information to check
against what an individual is providing, disclosing the discrepancies
between the information would be unwise.
Costs
The draft Bill fails to provide a financial
statement on the break down of costs. The Government has announced
that its absence is due to the commercial confidentiality of the
proposals. We find this unacceptable. The financial implications
of this scheme are paramount to the ability of the public to make
an informed opinion of the proposals. No proper public debate
can occur if the financial estimates are not transparent.
In its original figures, the Government estimated
that the scheme will cost between £1.3 billion—£3.1
billion. The Government has not made clear whether these wide
cost estimates include the costs of supplying machine readers
to bodies required to check the cards.
Despite the MORI poll results showing that more
than half of the 1,000 people questioned do not want to pay for
the cards,[103]
individuals will have to pay between £35 and £77 for
an identity card. The Government assures us that these costs are
a marginal increase to existing costs for driving licences and
passports. However, as the cards become more widely used and as
the administrative costs increase, it could be likely that the
cost would increase, either outright, or by reducing the "life"
of a passport, requiring renewals every 3-5 years at the same
cost each time.
Practical Difficulties
Implementing a nation-wide identity card scheme
will involve enormous practical difficulties. The practical hurdles
including the administration involved in updating the change of
address requests alone are likely to make the scheme unworkable.
CONCLUSION
The Law Society seriously doubts whether an
identity card scheme would significantly reduce the incidence
of identity fraud, illegal immigration, or of other crimes. We
believe it would increase the administrative burden on those administering
public services and put a heavy financial burden on government
and individuals.
This evidence has touched on a few of the specific
arguments why a complex and costly identity card is not the answer
to the problems highlighted by the Government. However, despite
these specific points, one needs to stop and ask the larger, more
fundamental question: Has the Government made the case as to why
a complex and costly identity card scheme is needed? We believe
the answer to that is a resounding "no".
It is the Law Society's view that the Government
has not yet made the case that an ID card scheme will be a successful
and sensible investment. Extreme caution should be exercised before
the Government plunges into implementing these proposals.
The Law Society has been actively involved in
the identity card debate. We have responded to Government consultations,
provided written and oral evidence to the Committee and, in March
2004, we held a public debate for officials, MPs, lawyers, academics
and NGOs.
May 2004
95 Home Office Evidence to the Home Affairs Committee
inquiry on identity cards. Back
96
"The Passport Delays of Summer 1999" (National Audit
Office, 1999). Back
97
Ibid p. 37, 3.29. Back
98
Home Affairs Committee Evidence session Tuesday 4 May 2004. Back
99
Home Office: Legislation on Identity Cards p. 49. Back
100
Ibid p. 86 para 4. Back
101
Ibid Clause 8(4) p. 52. Back
102
BBC News 22 April 2004 http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk-politics/3648309.stm Back
103
Ibid Back
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