Examination of Witnesses (Questions 720
- 735)
TUESDAY 8 JUNE 2004
MR ROGER
SMITH, MS
SHAMI CHAKRABARTI,
MR SIMON
DAVIES AND
MS VICKI
CHAPMAN
Q720 David Winnick: The Chairman
has stated in the two countries he mentioned that access to public
services is very difficult without an ID card, Ms Chapman. I was
not on the visit, but obviously my colleagues were, the Chair
has just stated that. Would you take the position that even if
the voluntary system was in operation for an ID card the same
would apply in practice, that when people did go to hospital or
applied for benefits inevitably the first question would be, "Have
you got your identity card?"
Ms Chapman: I think there is obviously
a real danger that once you have a voluntary card—or a so
called voluntary card—in operation, there may well grow
an expectation that people will have the card and be required
to produce it and it may well put people to considerable inconvenience
if they do not have a card and have to go some other way about
proving their identity. As I understand what the Government intends,
one of the key things about the identity cards they are proposing
is the biometrics, and that is one of the things that I think
they hope will make it so much more secure than other forms of
identity card. If that is the mechanism for proving identity you
then get into a whole new ballgame about reading those biometrics—is
every post office counter, is every hospital going to have one?
Chairman: We have rehearsed that in some
of the other sessions, but thank you very much indeed.
Q721 Bob Russell: Clauses 20 and
21 of the Bill cover disclosure of data on the Register without
the consent of the individual concerned, so we are talking here
about the police and intelligence agencies and have they been
given too much access to the database. So to Mr Smith and Ms Chapman,
you say that you are extremely concerned by the powers of clause
20 to disclose information without the consent of the individuals
concerned. I believe you were arguing that both the range of authorities
and the grounds for disclosure are too wide. So if that is the
case what do you think would be reasonable if, indeed, anything
can be described as reasonable?
Mr Smith: I find clause 20(2)
quite extraordinary, and I would hope that it is the Home Office
lawyers' first attempt, because I can see the point of 20(3),
which is—
Q722 Bob Russell: I was actually
asking about clause 20 at this stage.
Mr Smith: Sorry, I was taking
us to 22. Yes, 20(3) I can understand, which is disclosure to
a police officer for courts. It seems to me that 20(2) should
just be taken out completely.
Q723 Bob Russell: That solves that
problem.
Mr Smith: After "chief officer
of police" you insert Director-General of the Security Service
and all the rest of the people, and if they want to consult it
in the interests of the national security purposes—
Q724 Chairman: That is 20(2) and
20(3) not 22 and 23, hence the confusion.
Mr Smith: Sorry, I could not understand
why you could not understand me! 20(2) seems to me an outrage
and I cannot imagine your Committee would accept that because
it is so broad, " . . . purposes connected with the carrying
out of any of that Service's functions . . . ". Reasonably
connected? What are the functions of GCHQ? To listen to the airwaves.
It gives unlimited access really and I think that has to go. "In
the interests of national security; for the purposes connected
with the prevention or detection of crime," I can see the
point of that.
Ms Chapman: I agree.
Q725 Bob Russell: Ms Chakrabarti,
you argue that there should be "exhaustive lists of purposes
appropriate to the legitimate accessing and sharing of information"
to cover the disclosure to the police and other bodies of information
on the Register without the consent of the individual concerned
in clause 20. So what sort of purposes do you have in mind?
Ms Chakrabarti: As I said before,
Mr Russell, there are precedents in Article 8 of the Convention
on Human Rights and the Data Protection Act itself and we are
talking about something that is purpose-specific; we are talking
about national security; we are talking about crime prevention
and detection rather than, as Roger has said, long lists of personnel
who clearly are engaged in part or possibly for the most part
for some of those purposes, but when you have long lists of personnel
they have a blank cheque for all purposes. So purpose-specific
provisions on the face of the primary legislation. And the second
part that follows on from that is about clause 23, which is even
after this compendious list of personnel who may get access we
have this nice catch-all for the Home Secretary to add people
and purposes by order. The mind really boggles at what he has
not thought of yet. It really is too much of a blank cheque; it
is far too generous and in danger therefore of falling foul of
data protection principles and, indeed, in Article 8 of the Convention
on Human Rights.
Q726 Bob Russell: You have spelt
out why a blank cheque is not acceptable to you. How few names
would be acceptable on the cheque, in your mind? Or should there
be no cheque at all?
Ms Chakrabarti: Rather than names
I prefer purposes and the obvious purposes that I have mentioned
and that Roger and others have mentioned relate to the prevention
and detection of crime and to safeguarding national security.
If there are others that require the involuntary disclosure of
identification I think that the Home Secretary should say what
they are now and put them as specific and clear purposes on the
face of the Bill.
Q727 Bob Russell: You have clearly
stated your serious concerns. If I can now move on to the oversight
of the scheme and we have the National Identity Scheme Commissioner,
and I suppose we should be grateful it is not a Tsar or an envoy,
but we have a NISC in clauses 25 and 26. So continuing with you,
if I may, with Liberty, you suggest that the National Identity
Scheme Commissioner's powers, set out in clause 25, should be
extended to cover "the operation of the registration and
identification scheme as a whole" and then very bravely you
then criticise the Prime Minister, which not many people do nowadays,
his powers, in clause 26, to suppress details of the Commissioner's
reports. How would you see your proposals working in practice?
Ms Chakrabarti: Firstly, obviously
I am not criticising the Prime Minister, but the idea that this
Commissioner needs to report to the Prime Minister as a safeguard
against the Home Secretary, I think it would be better, frankly,
if he reported to Parliament, and you will forgive me saying that
to this parliamentary forum. Secondly, I think he has a rather
grand title because if you actually look at his jurisdiction it
is incredibly limited. He is most probably a Section 23 Commissioner
and that is not such a glamorous job really. No doubt somebody
would be prepared to do this one day a week, but it would be much
more of a safeguard if the Commissioner had jurisdiction over
all of the Home Secretary's powers, and there are many of them
in the Bill as a whole, and then he really would be the Identity
Commissioner.
Q728 Bob Russell: If those clauses
were amended in the way you explained, would that mean you would
then be happy with those clauses or would you still be unhappy
with them?
Ms Chakrabarti: We have made the
points that we have made. We are talking about the three-fold
approach. We are unhappy with the idea of ID cards per se
but we are engaging with the detail of the Bill as suggested.
We have made the points about the breadth of these clauses and
in particular the breadth of definitions and the ease with which
the Home Secretary can amend them by order. The third point is
that this Commissioner has far too limited a jurisdiction given
the broad powers of the Home Secretary and that it would be a
better safeguard if he reported to Parliament rather than to the
Home Secretary's boss.
Q729 Bob Russell: Mr Smith, you say
that you are "unhappy with the proposed National Identity
Scheme Commissioner" and with the extent of the powers that
he or she will have as set out in clauses 25 and 26. As I understand
it you would prefer an extension to the powers that the Commissioner
has and a new statutory power "to investigate and audit the
process". Would you not agree that many aspects of identity
cards, such as technical issues relating to biometrics, are outside
that Commissioner's expertise unless by some chance he or she
has that expertise? Normally they would not have that expertise,
would they?
Mr Smith: We were mainly concerned
with the data aspects of it, the data protection access and access
to the data on it. I think it is a discrete area over which one
should quite legitimately have the Commissioner.
Q730 Bob Russell: But he or she,
the Commissioner, could get in that expertise, could they not?
Mr Smith: Yes, of course.
Q731 Bob Russell: So it is not a
problem?
Mr Smith: No, I do not believe
it is a problem at all. I think they should have responsibility,
if they are monitoring it, where they have the expertise themselves.
We also thought that to make it neater this Commissioner could
be linked in with the Information Commissioner, who is waiting
behind us to say that he does not agree.
Q732 Chairman: Shami Chakrabarti,
you are concerned about the proposed £2,500 fine for failure
to comply with registration in the lesser stages of this. Given
that the Government, if they wish to go down this line, may need
some tools to require people to comply, is there any level of
fine or penalty that you think would be acceptable or reasonable?
Ms Chakrabarti: The concern is
not really just about the level of the fine or penalty. There
is a greater concern that comes from two sources: one, that this
can be imposed on multiple occasions and so can rise very quickly
to much more than the £2,500, and secondly, as was suggested
earlier, there is this discrimination. The twin-track approach
produces a much harsher regime with these financial penalties
which, incidentally, may be called civil penalties for the purposes
of this Bill but may turn out to be criminal in substance once
the courts have had a look at them. For the purposes of Article
6 of the Convention on Human Rights this may turn out to be a
criminal rather than a civil penalty. It matters not as long as
the process is fair but it is worth remembering that these civil
penalties are available not just in relation to the hard-bitten
refusnik who chooses not to comply even though he was required
to but also everyone who did not choose to volunteer at the moment
when that was open to them, if ever it was. There was the example
I gave about the elderly and so on, so all in all we have the
potential for a very harsh scheme here.
Q733 Chairman: So at the very least,
although I know you are against it in principle, you would want
some distinction drawn in the penalty regime between, as you say,
the ID card martyr, the hard-line refusnik, and the person who
has fallen foul of the law by a failure to take up the opportunity
or the request that is on them?
Ms Chakrabarti: I think closer
attention is required.
Q734 Chairman: Mr Smith, I wonder
if you could pursue the point that you explicitly raised in your
evidence that these turn out to be criminal rather than civil
penalties? Could you explain that to us for the record?
Mr Smith: You, when you introduced
it, called it a fine. If you had to use ordinary language you
would call it a fine and since that goes to the essence of it,
it is universal, coercive, it has got sanctions. There is an old
case from the 1990s, Benham, which related to the poll
tax. That related to somebody who was imprisoned, but I think
that in essence what that case is saying is that you take into
account in deciding whether something is criminal or civil how
governments have described it but you really have to go to the
essence of what is happening. What is happening here is the imposition
of a fine. I have some sympathy with the government. They do not
want to create poll tax martyrs. They want a coercive system,
they want to impose a fine. They do not want imprisonment to follow
non-payment of that fine. Fine: say that, and be clear about it,
because I think it does make a difference what you call it. It
makes a difference to the burden of proof, it can potentially
make a difference to the availability of legal aid, it can potentially
make a difference to the mental element that would be required
to be proved if someone was charged and was successfully to be
convicted. It does make a difference whether it is civil or criminal
and if it is a crime and it is a fine it should say so.
Q735 David Winnick: Ms Chakrabarti,
you said of course as an organisation when you spoke previously
that it is not the wish of Liberty to encourage non-compliance
with the law and most people will accept that if Parliament agrees
to a law that law should be obeyed. Having said that, do you have
any sort of estimate of the numbers of people who are likely to
break the law, refuse to pay the fine and suffer imprisonment?
When I say have you got an estimate, that is putting it perhaps
in an inappropriate way, but do you feel there is a sizeable number
of people who would take that line?
Ms Chakrabarti: I am going to
turn if I may to Mr Davies who will I am sure remember the precise
result of that poll, but there was a poll just a few weeks ago
that suggested that there was a significant hard-core minority
who were prepared to say at this point in the discussion that
they would be the hard-bitten refusniks.
Mr Davies: We commissioned a YouGov
poll about three weeks ago of 2,020 adults and the results were
that 38% of the population were opposed to compulsory cards but
it appears that the opposition was extremely deep because 25%
of that chunk of the population were prepared to take to the streets
and demonstrate. 16% said they would be prepared to engage in
civil disobedience and 6% said they would be prepared to go to
prison, which represents about a million people. The support is
broad but the opposition is extremely deep and entrenched.
Chairman: Can I thank all four of you
very much indeed for coming this afternoon. It has been a very
useful session.
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