54. Second supplementary memorandum
submitted by Liberty
INTRODUCTION
1. We are restricting our comments to the
detail of the draft Identity Cards Bill. Liberty has already provided
written and oral evidence to the Committee detailing our concerns
with a national compulsory identity scheme.
2. Our comments on the Bill should not be
taken to imply that Liberty accepts that a National Identity Register
is either desirable or justified. The Government has ignored the
financial, constitutional, and privacy implications of the Register
and identity card scheme. The financial costs, both in set up
and maintenance, will be huge. Any perceived benefit would not
justify introduction as public funds could invariably be better
spent elsewhere. The introduction of an identity card scheme will
have far reaching implications for the relationship between the
individual and the state. Profound privacy implications arise
from both the Governments record in maintaining databases, and
the lack of enforceable privacy rights in comparable EU countries
that do have identity cards. We contest the Home Secretary's assertion
that black and minority ethnic groups support his proposal. Race
groups we have liaised with are concerned both about the experience
of minority ethnic groups in other countries with identity card
schemes, and the implications of a scheme in Britain whilst stop
and search powers are disproportionately used against members
of ethnic minority communities.
3. None of the arguments for identity cards
stand up to examination. The impact in fighting crime, benefit
fraud, terrorism and combating illegal immigration will be negligible.
Any benefits in accessing services could be matched through single
purpose identifiers. We are asked "why not have an identity
card?" The more pertinent question is "what justification
is there for a card?" Comparative research shows that countries
with identity card schemes suffer the same problems that we are
told cards will combat.
4. There are a number of general comments
to be made about the Bill. The consultation document makes repeated
reference to the need for affirmative resolution by both Houses
of Parliament to extend any provisions in the Bill relating to
compulsion, information recorded, information sharing and so on.
While this provides some check to the Government's ability to
extend the provisions in the Bill, the affirmative resolution
procedure is a blunt tool for legislative scrutiny, as it does
not allow amendment of a proposed regulation. To take an example:
a regulation that proposes extending the data sharing ability
to a wide range of public bodies, will either stand or fall as
a whole. Parliamentarians may agree with some, but not all, aspects
of proposed regulation, but they will be unable to amend it. To
enable full legislative scrutiny and parliamentary debate the
power to amend regulations should be written onto the face of
the Bill, whenever regulations deal with categories of persons
or bodies[104].
5. The Home Office has stated that compulsion
will not occur until a number of criteria have been satisfied,
and that this is not envisaged for several years. It is worth
noting that there is nothing in the Bill to prevent immediate
compulsion. Clause 7 requires compulsion to be approved by Parliament
and lays down a number of requirements, but the timeframe envisaged
appears to be dictated by logistical factors and can presumably
be brought forward.
6. Although the Bill is called the "Draft
Identity Card Bill" its primary purpose (and the subject
of the bulk of clauses) is to create a National Identity Register.
An identity card itself is a consequence of entry onto the register.
Provisions about data sharing powers and the level of detail recorded
relate to the Register. This underlines the distinction between
the previous wartime national identity scheme and the current
proposal. It also means that the identity card itself is less
relevant to the debate. All provisions relating to identity cards
could effectively be removed from the Bill without undermining
its principal purpose.
THE BILL
7. Clause 1 creates the National Identity
Register. Information that can be held is limited to the definition
of "registrable facts' contained in Clause 1(4). The consultation
document states at 2.10 that registrable facts cannot be extended
by regulation to cover categories not relating to identification,
such as criminal convictions or medical records. Liberty disputes
this assertion. The list of "registrable facts' includes
at 1(4)(g), "information about numbers allocated to him for
identification purposes and about documents to which they relate".
As identification numbers of the Police National Computer and
National DNA database, for example, are used to establish links
to identifying information they could arguably be included. Even
if such information could not be added by regulation it is misleading
to imply some sort of bar preventing addition to the list by subsequent
primary legislation. We have recently seen provisions for data
retention contained in anti terrorism legislation[105]
and proposals for detention of terrorism suspects contained in
an asylum bill[106].
It is easy to envisage extension proposals arising in a future
criminal justice bill.
8. Use of the compulsion power in Clause
6 carries a greater burden on those compelled than simply the
prospect of a £2,500 fine (repeated on each occasion on which
notice to register is not complied with). Those compelled to register
will be subject to the fine of £1,000 for failing to renew
their identity cards on time. These proposals demonstrate the
Home Secretary's determination to deal harshly with all those
who do not "volunteer" for registration.
9. If the Home Secretary requires it, those
required to be issued with identity cards can include anyone entering
the UK. Under Clause 8(4) a card may be issued to anyone not normally
required to carry a card but about whom prescribed registrable
facts have been entered on the Register. These facts, such as
name, address and so on, will be required from all those passing
through customs. Under Clause 2(2) all those of a prescribed description
proposing to enter the UK are entitled to be entered on the register.
The consequence of these two clauses is that the Secretary of
State may pass regulations requiring non nationals who are not
applying for immigration or refugee status to carry identity cards.
10. Clauses 11-13 relate to maintaining
the accuracy of the Register. This is largely achieved through
obligations on individuals to notify of changes in relevant information.
It does not, however, create any obligation to audit the information
contained on the Register. The Government has a poor record on
accuracy of information held on databases, demonstrated most recently
by the Criminal Records Bureau, which was shown to hold numerous
inaccurate details of convictions. Whilst inaccurate information
in the CRB can be discovered through the issuing of a Criminal
Conviction Certificate, inaccuracies on the National Identity
Register could remain undetected indefinitely. In addition to
the obligations on individuals, Liberty believes a duty to ensure
entries are accurate should be written onto the face on the Bill.
This could be achieved by requiring details of the entry to be
sent to those on the Register on an annual or bi-annual basis.
11. Clause 12 places an obligation upon
all those on the Register to inform of any relevant change of
circumstance affecting an entry on the register. A failure to
do so can result on a fine of £1,000. Whilst some details
will remain relatively static, others, such as address can change
quite frequently. This could place a considerable burden on those
who live in insecure, or simply frequently changing, accommodation.
As the Secretary of State can also require a fee to be paid for
any modification to an entry on the Register (Clause 37(b)) the
potential cost of the identity card to those who move house frequently
(and who may be least able to afford such cost) is considerable.
12. Liberty is very concerned that regulations
can require that failure to notify the Secretary of State that
an identity card has been lost, stolen or damaged will be a criminal
offence. This is wholly disproportionate, and could criminalise
a lack of awareness of a third party's actions. It is quite conceivable
that the holder may not be aware of something "in or on it
having become unreadable or otherwise unusable" (Clause 13(9)(c)).
Whether or not a prosecution occurs, it cannot be right that a
person has committed an offence if their card is damaged even
if they are unaware of the fact. At the very least a defence should
be written into the Bill that the holder was unaware of the damage,
or had other reasonable excuse, otherwise the offence is strict
liability. Equally, we are extremely concerned that someone who
has their identity card stolen could themselves be criminalised
as a consequence of not reporting the fact.
13. Clause 19 creates a prohibition on a
requirement to produce identity cards, but this does not extend
to situations including where a person has been compelled under
Clause 6. We imagine this is intended to allow foreign nations
or refugees, for example, to be required to carry a card. The
practical effect is that those who are compelled by reason of
not having registered by the date when the Home Secretary determines
that cards shall become compulsory can be required to produce
cards while other citizens are not. We do not imagine that the
Government intends to impose this two-tier system on British citizens.
For clarity's sake this should be made explicit in the Bill.
14. The Home Secretary reserves the power
to make regulations authorising disclosure of information on the
register, without consent, to the police that goes beyond national
security or crime detection and prevention[107].
We appreciate that such an order will have to be approved by Parliament
but, as mentioned earlier, are concerned that this does not allow
a sufficient level of scrutiny. Exhaustive lists of purposes appropriate
to the legitimate accessing and sharing of information are frequently
contained in legislation[108].
It is far preferable that the purposes be written onto this Bill.
This will allow certainty and proper debate.
15. Power to disclose without consent is
further extended, theoretically without limit, in Clause 23. Regardless
of the fact that approval is required for regulation we remain
extremely concerned that the Home Secretary has effectively written
himself a blank cheque. As stated previously, regulation cannot
be amended, but will either stand or fall.
16. We are pleased to see that a National
Identity Scheme Commissioner will be appointed under Clause 25.
However, it appears this role will be limited to reviewing and
reporting to the Prime Minister on the exercise of the power to
disclose without consent. The Prime Minister has a broad power
to suppress details (Clause 26 (4) (d)), meaning that the manner
of reporting is far from independent. Liberty believes that the
Commissioner's remit should cover the Home Secretary's other powers,
as well as register accuracy, the use of penalties and broader
issues such as interaction with the Citizen Identification Project
database.
17. Ideally the role of the Commissioner
should extend to overseeing the operation of the registration
and identification scheme as a whole. If it is envisaged that
the Secretary of State will make repeated extensions to his powers
through the passing of regulation it would be helpful if the Commissioner
could report on the use of such powers. This will allow Parliamentarians
to assess whether further extensions are justified.
18. We have no comment on the range of offences
relating to the possession of false identity documents or documents
relating to others with the intent of using these to establish
identity. However, we query whether the lesser offences of being
in possession of identity documents that are false, improperly
obtained or that relate to someone else are entirely necessary.
If the document has been improperly obtained it is likely that
an offence will also have been committed under Clause 30 (providing
false information). If the document belongs to someone else then
we imagine an offence of handling stolen goods would have been
committed. If the document has been found, but the person has
not taken steps to return them to the owner (whether this would
amount to a reasonable excuse is questionable) we do not think
the criminal law is appropriate.
19. We have mentioned earlier the consequential
costs arising from the national identity scheme are likely to
be considerable. Clause 37 envisages a wide range of situations,
including issue, modification and application for disclosure,
where fees may be charged. While arguments over the direct and
indirect costs of the scheme are not within the scope of a submission
on the structure of the Bill, it is telling that the Home Secretary
envisages the necessity of frequent charging to balance against
the high costs of setting up and maintaining the Register.
May 2004
104 As in (clause 7(2)(c)) which creates an ability
to amend when extending compulsion. The problem with regulation
approval was apparent in the recent orders made under the Regulation
of Investigatory Powers Act 2000 where list of bodies to be given
access powers to communications data for example had to be all
approved or none. Back
105
The Anti Terrorism Crime and Security Act 2001. Back
106
Asylum and Immigration (Treatment of Claimants etc) Bill. Back
107
Clause 20(3). Access records under Paragraph 9 can only be obtained
if connected to the detection or prevention of serious crime. Back
108
For example, in the Schedules to the Data Protection Act 1998,
as legitimate purposes under Article 8 of the Human Rights Act
1998 or in section 22 of RIPA 2000. Back
| 
