Examination of Witnesses (Questions 160
- 179)
TUESDAY 3 FEBRUARY 2004
MS SHAMI
CHAKRABARTI, MR
SIMON DAVIES
AND MS
VICKI CHAPMAN
Q160 Chairman: Can I just take two
points in there further. What do you say about an ID card in relation
to illegal working? Surely if there are risks of racial discrimination
because society is attempting to tackle illegal working, that
is likely to stem from assumptions that are being made about what
sort of people are likely to be illegal workers, not from whether
they are being asked to produce two or three identity documents
or a single identity card. I cannot see why using an identity
card to identify illegal workers is fundamentally different in
principle to having two or three other documents that people have
to produce to prove they are entitled to work.
Ms Chakrabarti: In relation to
the race argument specifically, you are of course quite right
that there are already significant problems of race discrimination
in the private and public sphere. For example, the statistics
on the use of stop and search powers and one being eight times
more likely as a young black male to be stopped and searched .
. . You are quite right, without even a single compulsory ID card—
Q161 Chairman: We need to tackle
that anyway irrespective of whether we change anything about identity
cards.
Ms Chakrabarti: Absolutely, but
we believe that that problem will be infinitely compounded by
the creation of a single compulsory card or indeed a voluntary
card which we say will be de facto compulsory and this
is borne out by the comparative experience of other European countries
where such cards have been used in France, Germany and Portugal
in particular. There is not time to go on at length about that
but we have attached a summary of our comparative research to
our outline submissions.
Q162 Chairman: I am still a little
unclear as to whether your objection is to living in a society
in which all sorts of people are regularly asked to identify themselves
in a given way. I do not think it is that because you have accepted
that we need to do that for access to the NHS, for benefits or
whatever, or is it that the practical dangers of establishing
an identity card bring with them too many risks? I am having difficulty
understanding your point about constitution though I can understand
why you might have concerns about the practical consequences of
establishing a card. Can you help me a little more on that?
Ms Chakrabarti: Firstly, in relation
to the various different services in modern society that you have
mentioned, I do not think I can sign up to agreeing with you that
one should have to identify oneself at every one of those, so
I reserve my position about that. I am prepared to accept that
there are certain times in modern life where it is appropriate,
where it is justified, where the justificatory test is met. I
do not think many of us in this room would have a problem identifying
ourselves before we got on a transatlantic flight for example
and there are many other examples too, but we do say that to create
a single national compulsory identifier and a voluntary identifier
becomes de facto compulsory and creates a shift in the
relationship between the individual and the state, so that in
fact you are required to identify yourself/to be called to account
whether in practice and in an individual circumstance it is justified
or not. In addition, there are the privacy concerns, the lack
of privacy protection in this country. Germany has an ID card
but also an incredibly strong law of privacy. We go for the ID
card without the strong law of privacy and, in addition to constitutional
and privacy concerns, there are grave, grave practical concerns
about, for example, public authorities, policing and so on.
Q163 Chairman: Mr Davies, do you
take a constitutional view or a practical objection to the ID
card or both?
Mr Davies: I agree with the constitutional
and the practical elements, both of which run very deep through
this whole discussion. I also worry on the cultural and the personal
level. Our concerns are, for example, that the ID card fundamentally
changes inter-relationships between society, between citizens
and the state. It changes the balance between citizens and the
state. If you like, the nature of society becomes one where there
is a requirement to prove who you are. In other words, it is the
elimination of trust. I know that we live in the real world where
perhaps we are moving to a future where trust cannot be assumed,
but I would say that, on those three fundamental points—constitutional,
societal and practical—we have fundamental objections to
the sort of integrated ID scheme which has been proposed by the
Government.
Q164 Chairman: Ms Chapman, the Law
Society is not opposed in principle to a voluntary ID card but
you worry that it is going to creep, as it were, into a compulsory
card but, as more and more organisations require us or ask us
to have a card, does that not simply show that the card was working
in practice?
Ms Chapman: I think our comments
about not being opposed in principle to a voluntary ID card were
based on the fact that the original consultation paper from the
Home Office was asking for voluntary or universal cards, so we
responded to that question. I think that, in all honesty, the
debate has moved on considerably and that now the question of
a voluntary card is a bit of a red herring. I think it is clear,
and indeed clear from the evidence given to this Committee by
the Home Office officials, that what the Home Office has now in
mind is a compulsory card. There were frequent references to moving
to the compulsory stage. So, whilst that remains the case, I think
that, in practice, a compulsory card is what is on the agenda.
Q165 Chairman: And your view on a
compulsory card is . . . ?
Ms Chapman: We do not believe
that the Government have made out the case for a compulsory card.
We think it is unclear what is actually being proposed. Various
things have been claimed for the compulsory card-tackling illegal
immigration, illegal working, crime and identity fraud. I think
that, in relation to all of those, it has not been demonstrated
that, even if the card were able to assist, it is a proportionate
response to the mischief that is being alleged. There is also
the cost-benefit analysis. We started with the idea of a fairly
simple photo card; it is now clear that the Government are moving
on to something much, much more sophisticated in terms of the
biometrics. We do not really have any proper figures about what
the cost would be and therefore I think that the proportionality
argument of cost benefit has not been made out.
Q166 David Winnick: Can I put this
point perhaps to the Director of Liberty. Those who argue for
an identity card scheme say in effect, "What is the trouble?"
and would perhaps point to their wallets or handbags as the case
may be and say, "Look, if we work in the House of Commons,
we have to have an identity document. We are not allowed in otherwise
unless we are recognised. We have credit cards" They argue
that the situation is totally different from half a century ago.
So, why all this agitation? Why not simply accept the inevitable?
Ms Chakrabarti: Indeed. This comes
back to the question put to me by the Chairman about the difference
between a number of cards used for specific purposes and a single
unified card that has all sorts of information about you on it.
In relation to, for example, a workplace card that gets you access
to these Houses of Parliament or to other specific cards, in relation
to each, the contract is made, the understanding/justification
should be made out. Once you create a single combined card, the
obvious result is that one does not need to make out the justification
anymore and the card will be demanded; the card will be used across
society whether there is a proper purpose and a proper justification
or not. We also think that there are practical concerns in relation
to how much information would be held on a single card, whether
there would be proper protections or whether it would just spiral
into all sorts of irrelevant and inappropriate data sharing.
Q167 David Winnick: What do you say
to the view that the state already has—and I mean any modern
state, Britain being no exception—all the information on
a citizen, national insurance numbers and the rest, so where would
be the difference, the advocates of identity cards so argue and
I am playing devil's advocate at the moment, between that information
which we know exists on a database centralised and all the rest
of it on all of us if you are an ordinary resident in the United
Kingdom and having an identity card?
Ms Chakrabarti: There is a real
constitutional tradition in this country that says that Government/the
state holds information about you but holds it in different places
for different purposes. So, for example, the Inland Revenue has
always held a certain amount of information about people but possibly
had greater data access powers and more sensitive information
about me than other public servants. The tradition in this country
has always been that just because the state holds a piece of information
about you in one place for one purpose, it does not mean that
that information can then by passed around willy-nilly by the
state or indeed to other agents either. That is something that
we have had in this country forever and long before the Human
Rights Act or anything of that kind. We have been moving apace
in recent years—and this proposal is the latest step in
that—to a complete step change from that idea that the state,
in different places, holds information about you for specific
purposes to a presumption of data sharing, and the ID card is
just one representation/manifestation of that differing approach.
It comes out in Cabinet Office documents and other proposals that
there should now be a presumption of data sharing rather than
our traditional constitutional presumption of holding specific
information in specific places for specific purposes.
Q168 David Winnick: If the majority
of people will accept an identity card—they may change their
minds but if it is actually a fact of life—because the large
majority say that that is the law, what number do the three of
you estimate would simply say, "On the basis issue of civil
liberties, I will not hold a card and defy the law"? Do you
think it will be a handful or more?
Ms Chakrabarti: Of course it is
an invidious position, when one is appearing before a parliamentary
committee, to suggest what the law should be. To suggest that
large numbers of people might, whatever the outcome of your deliberations,
actually decide to disobey the law is not a nice position to be
in. Of course, I am a civil libertarian but I am also a lawyer
and my organisation has the greatest respect for these Houses
of Parliament and the rule of law. However, there has been polling
and various figures have been suggested. I believe a recent YouGov
poll suggested that as many as 7% of those polled felt so strongly
about the shift in the relationship—
Q169 David Winnick: Do you believe
that there will be those who feel so strongly?
Ms Chakrabarti: I am not at this
point advocating—and I want to make that absolutely clear—disobedience
because I am playing my part in this process, but, yes, there
is a suggestion from many quarters—and I have no reason
to disbelieve it—that a significant proportion of society
might feel so strongly about this that they might feel that way
inclined.
Mr Davies: I would like to add
to those remarks. I had the good fortune to direct a campaign
in Australia in 1987 against the national identity card proposal
of the Hawke administration, very similar to the Government's
current proposals minus the biometric. When we commenced the campaign
in July 1987, there was a mood similar to that which we find here
in the UK, about 5% to 10% of people hard line opposed to the
concept of an ID card. In other words, people were pathologically
opposed to what they perceived as greater power of the state.
Within 12 weeks from the commencement of the campaign, that figure
had shifted from roughly 10% against to 90% against. It did not
take much to shift the entire Australian population—it turned
on a sixpence. The reason it turned was because of pathology.
All you need to do is present people with the evidence of the
way authorities can abuse power and you will find a critical mass
and, once that critical mass gets to 10% or 15% in any country,
a sort of campaign snowball is created. My projection would be
that we have not yet seen the launch of that snowball in Britain.
In western societies, we do not know how the public will respond
to the idea of the biometric, but our own research indicates that
the opposition can be summarised in one line and that is, "This
is my eye and you are not having it" and that is going to
be a campaign slogan. It may have nothing to do with Privacy International,
Liberty or the Law Society, but there will be a critical mass
of those who are pathologically opposed to the concept not just
of centralised administration of personal information but also
to the very concept, the gut concept, of having one's eye or fingerprint
taken, stored, used and reused. So, I think we have to deal here
with practicalities and with pathologies.
Q170 Mrs Dean: I have a question
on data sharing. I have constituents coming to me who want Government
departments to talk to each other and to share data, for instance
when they want to receive payment through the Child Support Agency.
Could you give us examples of where you think data sharing would
actually cause genuine problems to individuals rather than perception
problems.
Ms Chakrabarti: I think that a
genuine problem is caused whenever the process of giving more
information than is strictly necessary or strictly agreed by Parliament
under powers that gave Government departments to hold information
is circumvented by a culture of willy-nilly data sharing. I completely
understand the sentiment of your constituents that the left hand
should know what the right hand is doing and that is a common
sentiment about how Government works, but I am not sure that I
would read from that an idea that, for example, sensitive personal
health records that are held in the National Health Service about
someone should be automatically, without these Houses debating
it, without it being enshrined in law, without the proportionality
argument having been made out—
Q171 Chairman: Is there any proposal
to do that?
Ms Chakrabarti: No. The question
was put, how could there ever be a concern about more communication
between departments?
Q172 Chairman: Just to be clear,
there is not actually any proposal linked to the identity card
to share people's private health records with anybody.
Ms Chakrabarti: I was answering
a hypothetical about how people feel about sensitive personal
information.
Q173 Bob Russell: Mr Davies, I am
still trying to conjure up this thought of a snowball position
in Australia! As I understand it, the vast majority of the member
countries of the European Union and the vast majority of accession
countries have ID, some compulsory, some voluntary. Is there any
record of opposition in those European countries?
Mr Davies: To my knowledge, there
is no evidence that a popular revolt has occurred in those countries.
However, there is evidence, for example, that elements of the
card system have been ruled illegal. For example in Greece, the
religion data element of the card has been ruled unlawful. There
have been sporadic concerns, for example, in areas of Italy and
Spain, but no comprehensive national revolt as such. There certainly
have been over the National Census, for example, in Holland and
Germany but not over a card per se and that is possibly
because, culturally, since the Second World War, many of these
countries have been used to literally a cardboard card. What David
Blunkett and the Government are proposing is radically different
to anything we have seen on the continent. What he is proposing
and what the Government are proposing is almost identical to the
Chinese and the South-East Asian card systems. In fact, the blueprint
for the MyKad system in Malaysia is identical in every respect
to the one proposed by the Government. That, to me, brings us
to a different discussion to the one which might have been had,
for example, in Italy or in Germany.
Ms Chakrabarti: If I might just
say a brief word about that European comparative experience. The
only common law country in Europe, apart from this country, is
Ireland which opposes ID cards. The race fear that I have tried
to express to this Committee is completely borne out by the feeling
of French Algerians, German Gastarbeiter and so on, so that is
not just panic on my part, that is borne out by the evidence.
Also, it has to be remembered that most countries in Europe that
have these ID cards have had them for a very long time, so they
have not actually addressed them in modern post-war and, in some
cases, post-fascist regime climates. Some of these countries have
had ID cards since those days and therefore do not, in a modern
liberal democratic context, debate whether they are a good idea
or not.
Q174 Bob Russell: Colleagues will
be pursuing the international European aspect, but I have one
question on UK population registers. There is a suggestion of
a plan by the Office of National Statistics for a UK population
register. Does it not make sense the exploit the new technology
to make record keeping more efficient?
Ms Chapman: To some extent, this
goes back on the question that was being asked earlier about the
single point of contact with government agencies. I think what
is being planned with the population register in some ways would
be attractive because it would give you one single point of contact
with all government agencies and that kind of one-stop shopping
is superficially attractive. There are a number of important points
to bear in mind. One is that people may, for perfectly legitimate
reasons, choose to identify themselves differently to different
arms of Government. You could, for example, as a married woman
use your unmarried name with the tax office because that is the
name you are known by when you are working and use your married
name with the benefit office when you are claiming child benefit.
So, it is not as straightforward as having a single piece of information
which you want all the Government departments to know. The other
thing is that different Government departments will want to verify
pieces of information to different standards. The tax office do
not care very much where you live, they just want to communicate
with you. The benefit office may care an awful lot where you live
because it may be relevant to the benefit that you are claiming,
or indeed the local authority if you are, for example, claiming
housing benefit. I think that there is a real danger that, with
those kinds of projects, you end up with a turf war between Government
departments about the level of verification of information that
is being brought forward. Inevitably of course, when you have
a hub of information like that which has many arms going out to
different parts of Government to local government, the dangers
of that information being insecure are very high. I am no expert
on the technical side and I am sure that Simon will know better,
but inevitably there is the danger of that information becoming
a piece of information that you did not want known from one department
to another becoming known.
Mr Davies: Can I just add that
there are two fundamental pillars of objection to this proposal.
The first that Shami has mentioned is what we call the functional
separation. Functional separation is one of the prerequisites
of a free society. In other words, it is absolutely crucial that
individuals are able to deal with the state and with the private
sector on its own terms on its own turf. As soon as, for example,
there was the capacity to notify the local authority department
of housing that your parking fees are outstanding, you can imagine
the sort of chaos and the denial of services and rights that such
a situation would lead to.
Q175 Chairman: There are huge numbers
of members of the public who cannot understand why the state does
not collect fines and would actually rather like the state to
be more effective in collecting fines that have been imposed on
people and actually finding out where people live in order to
collect fines might be seen by people as a good thing. Do you
not accept that there is an argument that many members of the
public think there is something wrong with a free society in which
people break the law and do not have their fines collected and
nobody does anything about it?
Mr Davies: Can I suggest that
the majority of the public want fines collected by the state relating
to other people and not to themselves! I have certainly had occasion
to dispute levies—I will not say "fines" in this
place—that have raised, various fees, which, had, I lost
the dispute, could very well have turned into fines and even into
court action. I want to deal with that particular arm of Government.
What I would say is that there is a pathology within Government,
almost an obsession, of joining everything together, the streamlining
of Government services. From a security perspective, rule 1.0.1
of security is never centralise. It leads inevitably to disaster.
If you have a centralised link to a single number, your security
threat will exponentially increase and that is a fundamental rule
of security.
Q176 Mr Prosser: I am finding the
arguments intriguing, to say the least. On the question of functional
separation, is it not the case that, even today and in recent
years anyway, in limited circumstances, there is some exchange
of information between agencies and is it not the fact that with
serious cases, for instance child abuse, drug smuggling and serious
organised crime, by linking up and exchanging limited information,
we are able to crack down on those undesirable areas? I know that
in my own casework, for instance, when there is a suspicion of
a child or a baby being abused, Social Services can link into
the other agencies and try to find the truth. That is a fact of
life. I do not think that we should be absolutely antiseptic and
surgically antiseptic from all of these pillars. Secondly, Ms
Chakrabarti, you talk about your position in principle about having
separate identifiers for this access, that access and a third
access. In view of that, do you think that those identifiers should
be sound? Should they be, as far as practical and possible, beyond
forgery and the abusers?
Ms Chakrabarti: On the first point,
of course I am not completely opposed to cooperation and indeed
information sharing between the relevant Government departments.
The point I just make is that the traditional constitutional route
to achieving it in this country is for Members of Parliament like
yourselves to look at legislation that provides the proper amount
of information to the proper department for the proper purpose
and indeed, if necessary, provides the appropriate gateways to
sharing. It is all led in this country's tradition by what is
necessary. What is it necessary for this department to know for
what purpose? I am not saying that there should not be cooperation
between the departments, I am not saying antiseptic separation,
but no more than necessary. As to rather than being led by the
idea that it would be incredibly convenient and attractive in
a kind of new age sense to have this great big edifice called
the National Government Information Database, in relation to forgery,
I think it must be right that identifying documents and material
and cards, identifiers of whatever kind, should be as robust as
possible. I am not a technical expert but I rather suspect, from
what I have heard and from what others have told me, that possibly
no identifier in the world will ever be completely 150% robust
and therefore there is actually additional security in a number
of different identifiers.
Q177 Mr Prosser: You are avoiding
the issue of practicality as if it is not important. Are you advocating
then that people should be required to carry the best quality
of identification for each of the various agencies and carry it
all, so that, instead of one smartcard, have six or seven?
Ms Chakrabarti: I am sure I am
being unclear. I am of course the Director of Liberty and am not
advocating that people should be required to carry anything. What
I said earlier is that it is appropriate that people identify
themselves in modern society for certain specific purposes and
we could disagree about what those purposes are, but I think there
is better constitutional protection for the individual and better
security for the state and the individual if that is provided
by the range of . . . I am always required, when I have to identify
myself, to take a driving licence and a passport or a banker's
card. That is because of this commonsense approach to the idea
that, at times, more than one identifier is actually more secure.
I do not agree that there is going to be such a thing as the perfect
forgery-proof identity card, so I actually think that, from a
practical point of view, one is better to have a number of identifiers.
Q178 Mr Prosser: In future years,
in the European Union at least, our passports will become more
secure with digital codes, moving towards the smart card idea.
I do not know if you object to that and Mr Davies should come
in on this. Mr Davies, you have talked about this resistance in
Australia with people saying, "This is my eye imprint, do
not steal it" but what about, "This is my image, do
not steal it"? Are you going to ban photographs in passports?
Is that not a bit fanciful?
Mr Davies: I am not suggesting
that, in another 50 years, people will not get used to the idea
of iris scan, but I will be dead by then and I just live in the
here and now. My concern is that the concept of iris recognition
hits at the gut instinct of a great many people. The concept of
fingerprinting has criminal association. The photograph has less
of an association because it is more widely used. If the Government's
plans succeed, then I am quite sure that iris recognition in the
next generation will be so commonplace that it will be the natural
successor of the photograph. I have no intention of sitting idly
by and allowing that to happen for a range of reasons. First of
all, that there is an assumption of perfection about biometrics
that simply is not borne out by the scientific evidence. If I
want to steal the identity, for example, of any member of this
Committee in a world with iris recognition, I need do no more
than take a 5 megapixel digital camera shot of you and then your
identity is stolen for the rest of your life; you will never revoke
it; you will never reclaim it. I do not want to live in a world
where that security threat exists. So, there is a fundamental
difference between people's concerns over the iris scan and the
photograph.
Q179 Mr Prosser: Do any of you oppose
the developments which came in just two years ago which replaced
paper identity cards for asylum seekers with the smart ARC card?
The background to that was that there was widespread abuse of
the earlier paper status letter and we had evidence of people
making multiple applications for benefit and people without any
claim whatsoever through the asylum system linking into the support
system. So, the ARC card was brought in. It does not have biometric
attributes but it has fingerprint identification and all the evidence
I have heard is that it has not been forged and that it has brought
order to a system which was going into chaos. What is your view
on that?
Ms Chapman: Speaking for the Law
Society, we certainly have no objection to the ARC card and our
understanding from refugee organisations is that it has been very
welcome because very many asylum seekers find that because they
do not have any other form of identification, it has proved very
useful to them to have something which is a secure form of identity.
So, as far as we are aware, it has been very successful.
Chairman: Does anybody wish to disagree
with that general assessment of that particular card? I would
like to move this on.
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