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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 130-ix House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
Tuesday 15 June 2004 DR CHRIS POUNDER and MS CLAIRE McNAB DR VIVIENNE NATHANSON, DR JOHN CHISHOLM CBE Evidence heard in Public Questions 773 - 850
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 15 June 2004 Members present Janet Anderson Mr James Clappison Mrs Claire Curtis-Thomas Mr Gwyn Prosser Bob Russell Mr Marsha Singh David Winnick
In the absence of the Chairman, David Winnick was called to the Chair
________________ Memoranda submitted by Data Protection and Privacy Practice and Press for Change
Examination of Witnesses
Witnesses: Dr Chris Pounder, Editor, Data Protection and Privacy Practice, and Ms Claire McNab, Vice-President, Press for Change (PFC), examined. Q773 David Winnick: Good afternoon, Dr Pounder and Ms McNab. Thank you for coming along and also many thanks for your papers beforehand. Are there any opening statements that you would like to make, first of all, Dr Pounder? Dr Pounder: No, not particularly, I will make my comments in relation to the questions asked. Q774 David Winnick: Ms McNab? Ms McNab: Perhaps just two comments in relation to the overall impact of the ID card proposals on trans people. The first is that trans people do not seek secrecy, we are seeking privacy, and the reason the ID card proposals could be so important for us is that by facilitating a system of much wider disclosure of information the maintenance of that privacy, which is particularly important to us in many aspects of our lives, becomes a crucial issue in far more situations than it has been previously, so it is a step change in terms of the magnitude of the number of issues where disclosure becomes a factor, so that is why we are particularly concerned. Q775 David Winnick: Thank you very much. We have your paper and moreover obviously there will be questions. If I can put some questions to you first of all, Dr Pounder. You are concerned, are you not, by the ability to share or create linkages between personal data collections across a whole range of government departments, or possibly rationalising government databases. That is your concern from your paper. I do put the point to you: is that not really part of joined‑up government? Do you have an objection in principle to the creation of a linking‑up system of other databases? Dr Pounder: Before that I would like to make one observation which is that the data sharing or data linkage agenda in relation to the ID Card Bill has been largely missing in the two previous consultation exercises and has only come to the fore by looking at the clauses in the Bill. Your previous witnesses, Mr Fisher for instance, at Q421, talked about the fact that linkage with existing systems is going to create a very enriched database and Vernon Jackson in relation to local authorities described the address issues that local authorities face because they cannot find decent addresses, so the question is really pertinent. The issue is whether I have any concerns about data sharing and the question arises as to who is in control of the data sharing. I do not mind if an individual is in control of the situation, and quite clearly there need to be exceptions in relation to law enforcement and taxation but it is a question of who is in control of the situation. In relation to the data sharing agenda there is a proposed Data Sharing Bill which links to this ID card legislation because the ID card database will provide the central links. The Government have rejected the idea of consent as a way of creating linkages. In relation to this Bill, as you know, I have to provide my address, I have to provide various details if I want to travel abroad or I need a driving licence. In relation to the Data Sharing Bill which is proposed, which was supposed to be out in Spring 2004, the Government have said the following, this is on their web site and it worth reading into the record because basically I did not put it into the evidence: "In terms of further enabling legislation, that is enable to facilitate data sharing, our judgment is there is little purpose in progressing the idea of general law to allow data sharing with consent." What it is instead proposing is that if I have the purpose then I can data share to achieve that particular purpose without consent. The DCA did an exercise in public acceptability of this and the conclusions of their survey, which in a sense reflect some of the conclusions of the UGov poll which was mentioned last week, show concern about data sharing, and the poll taken on behalf of the DCA said that: "60% of the public say they are "very" or "fairly concerned" about public services sharing their personal information, with 22% "very concerned". The issue is that that concern will dissipate if the data subject, the individual concerned, is in control of sharing. One question looking at the evidence was that basically somebody said, "My constituent wants data sharing", and if that is what the constituent wants I have no difficulty with that. The question is compulsion. Q776 David Winnick: Dr Pounder, would you be more happy if there were an explicit provision in the measure preventing the register from having any links with any other databases? Dr Pounder: No, I have no difficulty with linkages, it is a question of the control and accountability of the linkages. As soon as you go down the road of a provision where there is a statutory requirement to share then, as I mentioned in my written evidence, the controls under the Data Protection Act largely disappear. Q777 David Winnick: We come back to control ‑‑‑ Dr Pounder: It is a question of control. Q778 David Winnick: --- which to you is a very crucial point? Dr Pounder: Very crucial. Q779 David Winnick: Have you put those points to the Home Office? Dr Pounder: Yes, I have. Q780 David Winnick: Have you had a response? Dr Pounder: No. Q781 David Winnick: I do not suppose you are the only one. I dare say the Home Office is in a position to respond to all organisations but I am not their spokesperson. You suggest, Dr Pounder, that the register should not contain audit trails of ID card use that can be accessed, in secret, by the security services and the police in order to identify the services used by citizens, but I suppose the question is, bearing in mind the acute terrorist threat that I assume you accept is always present now, why should the security services in a democracy not have that information? Dr Pounder: I have no difficulty with the concept but in the original consultation document, Entitlement Cards and Identity Fraud, the Government at the end basically said: "It is most unlikely the entitlement information relating to specific services will be held on a central register." It then went on to say back in question 3.29 of this entitlement document: "However, the Government would want to see a full debate and want to seek views as to the safeguards on access to the register, for example whether access to the database in these circumstances should be governed by warrant applied on a case‑by-case basis." The point I am making is the data sharing agenda was not in the consultation document and the access by the security services was not in the consultation document. Q782 David Winnick: Even though it was not, I am putting it very bluntly, Dr Pounder, to be the devil's advocate, it would be argued that we are faced, as you have more or less accepted, by an acute terrorist threat. Should the security services regard it as a weapon and the Home Office consultation document include such information if it is in the overall national interest? Dr Pounder: If it is necessary for safeguarding natural security I have no difficulty with that concept but I think in the whole data sharing agenda the sense I get is that the Government are piggy‑backing on the back of certain elements of public acceptability of an ID card a comprehensive data sharing agenda which has not been fully subjected to public scrutiny and debate. Q783 David Winnick: I think that is putting it very clearly and obviously the Committee will note your views on that. Dr Pounder, you are concerned that subsection 9 of Schedule 1 opens the door for unrecorded access by the authorities - in a sense it links up to my previous questions - to information on the register. You would like to see this amended? Dr Pounder: I think the "may" has to be a "must" if you are going to go down the agenda of having an audit trail. What I would also like in relation to the access request by certain forces, if you look at the Data Protection Act and the police and security services having access to data, you will find that they can have access to data subject to a test of prejudice, the prevention and detection of crime, prosecution, apprehension of offenders, necessary for safeguarding national security and in the ID Card Bill we have this phrase "in connection with" so I would like to see that tightened up. Q784 David Winnick: My colleagues will have quite a number of questions to you but you talked about the government piggy‑backing on various problems ‑ to put words into your mouth, I suppose ‑ using the ID card as an excuse to bring such a concept around. Do you have any objections in principle, with all the reservations that you obviously have, to having an identity card? Dr Pounder: So long as it is with a database that minimises the subject to proper scrutiny I do not think I personally would have any difficulty. David Winnick: Thank you very much. Mrs Curtis‑Thomas? Q785 Mrs Curtis-Thomas: Dr Pounder, you have called for a new right of privacy, possibly enshrined in the Sixth Principle of the Data Protection Act, but you also recommend consultation before this is implemented. In the meantime what changes would you like to see in the Bill that is before us? Dr Pounder: In relation to scrutiny if you are looking for a regulatory system that is going to provide checks and balances I would like to see checks and balances reported to Parliament, in particular the ID Card Commissioner. However, I do venture to suggest that in relation to statutory instruments, certainly of this particular nature, Parliament itself could be a bit more rigorous in the scrutiny of such legislation. At the moment we have the Joint Committee on Delegated Powers, which basically says that these powers will be wide and the Select Committee on Statutory Instruments which basically says that the instrument itself is either lawful or not. It would be useful in strengthening the position of the protection of the individual if Parliament could in fact strengthen its scrutiny in relation to statutory instruments. I understand that Sir Nicholas Winterton is looking at that in the Procedure Committee. Q786 Mrs Curtis-Thomas: So if you had that there is no need for the Privacy Bill then, that addresses it? Dr Pounder: No, I think the privacy amendment is necessary in the meantime. Looking at the way Parliament covers statutory instruments is important. Q787 Mrs Curtis-Thomas: That would not suffice in the long term? Dr Pounder: That would not suffice, not in the long term. There is a structural thing dealing with privacy. Privacy goes across all government departments and what you find is that the Minister for Children says, "We will take this slice of privacy and then we will get the Children's Bill in," and the ID card minister says, "We will get the ID Card Bill going effectively," and nobody is looking at the privacy which essentially goes across the board. Each minister has their own departmental brief. Quite clearly if I am responsible for the police and security services, if I were Home Secretary, then their concerns would have my uppermost concern as to making sure that I delivered what they wanted to do their job effectively. There is no going across the board, looking at privacy in general. That essentially is the privacy protection that is needed in a sense because as soon as you announce statutory regulations or use statutory powers the protection in the Data Protection Act largely disappears. Q788 Mrs Curtis-Thomas: Okay. You argue in your submission that the ID scheme would be, in effect, exempted from the Data Protection Act. In your view, is it necessary to have a complete redraft of the purposes of the Bill, as set out in clause 1, or could there be a simpler fix such as our doing an explicit mention of the primacy of the Data Protection Act? Dr Pounder: I do not think that works. If we could look at the experience of the Community Charge - and this illustrates what the issue is - in Scotland the Community Charge form back in the 1980s was a statutory instrument and that required individuals to provide information. In the English version of the Community Charge you did not have that statutory regulation so when English CROs used the Scottish forms they were in breach of the Data Protection Act in relation to collecting excessive information. The reason why the Scottish provision was basically okay data protection-wise was because there was statutory provision. The reason why I am talking about the Sixth Principle is that the main impact on regulation or statutory provision and the principles are in relation to the first five. If you amend the sixth to require public authorities to process personal data in accordance with respecting the rights of individuals, ie the Article 8 requirement, then what you give the Information Commissioner is leverage in relation to the question of proportionality. Q789 David Winnick: We had the Information Commissioner here last week, as you may know. He was very frank on certain points. You may wish to read his evidence. Dr Pounder: He expressed the same concerns that I have. I think "unprecedented" was the word he used to describe the scheme, if I remember rightly. Q790 David Winnick: You must have been in touch with him. Dr Pounder: No. Q791 Mrs Curtis-Thomas: You argue that the only data needed to support an identity/entitlement card scheme are a photograph and the name, national identity number and the biometric details of the individual, but surely the aim of the ID card scheme is not just to identify individuals but to identify them for specific purposes which is why local authorities, for example, need addresses. Does not your purist approach undermine the basic purposes of this scheme? Dr Pounder: If you take the Government's consultation document it says it is to establish identity and entitlement for services - that is what they say - but you do not need an address to establish entitlement for services you just need to know who you are, whether you are resident in the UK and whether you are paying your taxes. Q792 Mrs Curtis-Thomas: I would argue that you do need somebody's address otherwise how do you establish the fact of residence in the UK? Dr Pounder: You would need somebody's address if you are going to deliver services to that address. Q793 Mrs Curtis-Thomas: Yes you do, do you not, such as social services, for instance, you would need an address? Dr Pounder: If you were going to deliver services to that address but that is different from establishing identity and entitlement to services. Entitlement to services: do you want service X? Delivery of service may require the address and this is what the agenda has found. This is about delivery of services, not entitlement to services. In entitlement to services I think identity is a bit narrower. Q794 Mrs Curtis-Thomas: And it would be restricted to what? Dr Pounder: I am not recommending it is restricted to anything. What the consultation document says is that we propose a system which is limited to checking identity entitlement. That is what they have put to the British public. When you look at the Bill, it is a different Bill; it is all about service delivery. That is the issue. The question I would ask of you, and this might be a useful recommendation to make, is that if the Government wants earnestly a data sharing linkage agenda they should put a public consultation document out. After all, ID cards are going to be five, six or seven years down the road, so there is time to do this. The other important thing is you have had witnesses who have said, "Look, we need the specification of the system fully declared before we go." You need to know the extent of the data sharing and linkages before you create the systems, I suspect. That is all I am saying. Q795 Mrs Curtis-Thomas: Yes, so we have got other cards. In fact, we visited Sweden and Germany to talk to them about their identity card scheme and how it works and they did not have any problem there and no complaints about people giving their addresses. Why not there then? Dr Pounder: Sweden is a difficult situation because basically tax records are public documents and I think there are significant cultural differences there. However, with the German system, all I can say is I have tried to get some information for the Committee but I have been unsuccessful. The only bit I have got is these two lines on the web site and what it says is: "Does the Bundesdruckerei have a central archive containing personal data?" "Answer: No, data protection regulations prohibit the centralised storage of personal data. Such data may only be stored locally at citizens' registration offices. Once a document is completed at the Bundesdruckerei [the central one] all personal data is deleted or destroyed." So I think you are comparing different things. Q796 Mrs Curtis-Thomas: I am just trying to remember what were on those cards and I cannot. Right, thank you very much, Dr Pounder. Ms McNab, these questions are for you. You are concerned by the possibility that the physical characteristics recorded on the register may go wider than biometric information. Why does this pose particular hazards for trans people and what safeguards would you like to see in the Bill? Ms McNab: Thank you for the question. There are several ways of approaching this one. The first question is what physical and/or biometric information may be recorded. As I understand it, if we were to take one concept of biometric information as something which may or may not be physically visible which can be used to uniquely identify a person, some such information may be gender specific in its nature. For example, I think we could all understand that DNA information, if that were to be the proposed technology, can be readily used to identify the physical sex of the person concerned. For trans people that obviously poses a particular hazard in that we do not necessarily have chromosomes which match the sex in which we live our lives, so there becomes an immediate risk to breach of privacy if that information comes out. The technologies which the Government is looking at at the moment, I understand, are focused on finger printing, facial profiling and iris scanning with, as I understand it, facial profiling not a strong candidate at the moment. The question that we look at in that comes down to two points. The first is whether the raw information that is stored is disclosed. As I understand it, the intention is that information should not be disclosed, that the verification mechanism will rely upon the person conducting the assessment to relay: "We have found this; does this match with what you have stored?" While that protects against release of information that is held on the central data if the verification mechanism is working properly the information does therefore in some form end up in the possession of the person who is requesting the check, so there is a question of the security of the information at that point. One is creating a situation where sensitive information may be held as part of the verification mechanism. We then encounter a further problem of what happens when these validation procedures are used. I have no expertise in this area but from what I have been able to determine from talking to those who have and from discussions with the Home Office and reading elsewhere we cannot expect validation procedures to offer a binary yes/no answer. They will offer rankings of probability, in so far as I understand the situation, so they will say, for example, that the finger print that they have tested offers a 99.9% certainty that the person presenting is indeed Claire McNab, but we may in some of these technologies be dealing with very complex situations of these machines being deployed quite widely. There will have to be a balance in their usage between the degree of certainty required to create an exact match and the degree of certainty acceptable to avoid creating a whole lot of false negatives. If we are looking at a situation where, for example, a significant number of these tests might be revealing an answer of, say, a 90% probability or a 50% probability, something significantly down from 100%, then we are looking at a situation where there would need to be further matching of the data done. I can see various ways in which that could go. I think the most likely situation is going to be something akin to the sort of process that happens in the processing of credit cards where when there are grounds for suspicion you ask for a special code authorisation and various further questions are asked. If we are trans people this becomes particularly hazardous because we are dealing with a situation where the primary reason for the enquiry at that point is that the physiological matching has not worked. There is a problem here about the physiology of the person presenting. The sorts of questions that you might otherwise be asked, if you were trying to receive verification of checks on me, and I was sitting in front of you, is whether this is woman sitting in front of you. Faced with those checks in that situation I can see that it might be possible you would say, "I think so, probably, but ..." and one is in a situation where the fact of whatever incongruencies there might be in somebody's gender presentation starts to be problematised as one of the aspects of the verification. Q797 Mrs Curtis-Thomas: If I read you correctly, the biometrics as they stand, the proposals as they stand are not a significant problem to trans people, although DNA matching might be, and you lack confidence in the verification procedure because you have anticipated that there may be a situation where the verification requires further questioning and that could compromise your privacy and trans people might have to declare their gender. Is that it? Ms McNab: It is except that I would qualify the first bit a little further in that I know very little and there seems to be little available on the details of how iris profiling and the other technologies being examined at this stage would work in terms of gender markers within them. We have very little information on that. Q798 Mrs Curtis-Thomas: If you had reassurances about that that would help enormously? Ms McNab: It would help enormously, but I think we need to consider the possibility that there may be future technologies deployed in the biometrics sphere and to ensure that there is similar scrutiny of those as they arise in future. Q799 Mrs Curtis-Thomas: Alright. Finally from me, you want ID cards to record gender by social role rather than by legal status. It sounds like an absolute minefield to me. What language would you like to see in the Bill to record this desire? Ms McNab: I think simply saying social gender would be the most acceptable thing. This may sound like a bizarre legal concept to those who have not had the misfortune to familiarise themselves with the way the law is working in this area already, but driving licences and passports have been for several decades now issued to trans people in accordance with the gender in which they live their lives, subject to a minimal verification processes of essentially self‑declaration with some medical support. Q800 Mrs Curtis-Thomas: Just for clarification it says "Sex" and if you choose to be female you can just put "Female" or "Male"? Ms McNab: Yes. Q801 Mrs Curtis-Thomas: Okay. Ms McNab: One cannot just do it at will. My legal sex at the moment since the Gender Recognition Bill has not yet passed into an Act and become law, is male but my driving licence says female because many years ago I made the appropriate declaration and had the driving licence changed. That is the mechanism we would like to see in place for ID cards and it would be particularly important that that situation is secure because I notice that there are proposals to reconsider the security of the system by which driving licences and other such documentation are verified and we would be very concerned that there could be any extra obstacle to trans people in ensuring that the documents actually reflect the way in which we are required to live our lives. Q802 Mrs Curtis-Thomas: So you want to use the driving licence approach to gender in this particular Bill, you think it would be helpful? Ms McNab: Yes, which I understand is the model also followed in some European countries, particularly for example France, since there has been a French case. Q803 David Winnick: Have you put those proposals to the Home Office? Ms McNab: We have indeed. They were able to provide us with a broad assurance on that point that that is their intention. Q804 David Winnick: So you have had a response? Ms McNab: Unfortunately that seemed to be as far as they had gone in terms of considering the impact of things on trans people. That is perhaps the most accessible issue of the ones we would seek to raise. Q805 David Winnick: You are more fortunate than Dr Pounder, who did not get a response to his representations. Dr Pounder: I did not ask for a response, to be fair. Q806 Mr Clappison: Could I continue with Claire McNab who is here representing Press for Change. You are a very small and sometimes vulnerable minority and I know that you have had problems in the past with legislation which has not turned out to contain the safeguards which you thought it might have contained. Could you tell us if there are any other safeguards you are looking for in the legislation and at what stage you would like to see those safeguards put into place, given that we are putting in place a system here which will eventually become a compulsory system but which at first is a voluntary system through people applying for driving licences and passports? Ms McNab: Perhaps I could take your question in two parts. The first thing I would look at is the question of at what point do we start putting things into place. I note the Government's very useful assurance that protection for vulnerable minorities will be one of the issues to be addressed before any move to compulsion, but that rather begs the question of what they mean by compulsion because as I understand it the system will not be voluntary at the start. There will instead be a system of voluntary plus selective compulsion, so some groups of people will be compelled to carry the cards earlier. Q807 Mr Clappison: People will acquire cards through applying for driving licences and passports, but we are told that at some point in the future, perhaps ten years from now, we will have a debate as to whether we ought to have a compulsory identity card which everybody will be required to have. Ms McNab: It will be compulsory for some and then it will become compulsory for everybody. My first concern on that is that the point of assessment needs to be before the initial compulsion because if we are concerned about minorities, some of them will be caught in the groups that are going to be initially required to hold one of the identity family of documents. That is quite important as far as I understand the thing in terms of the way the system is likely to work, which is essentially a massive information technology project, because the way that the data structures and the data handling processes are set up is quite central to the huge amount of coding and whatever else has to be done to build the system. I would imagine that by the time the system has been operational and is ready for universal compulsion a lot of major structural changes to the process would be quite hard to achieve. These are the decisions that need to be made before deployment, they need to be made at the design stage rather than at the point of universal right because ‑ and I am sure the Government will bring good intentions to it at that point ‑ it may be very hard to modify the system to cope with problems that arise at that point. It is important to try and minimise the problems that may arise later on. One of the things that we would like to see at this point is something that I feel is missing from the regulatory impact assessment that is presented with the White Paper, which is that there should be a specific regulatory impact assessment of the impact on vulnerable groups. There is one with regard to race but I think this should be extended to many other areas. I think it is a little bit of a pity it has not been there up to now but maybe it could be done before the final Bill is laid out. I have forgotten the second part of your question. Q808 Mr Clappison: It was about the movement from a voluntary system to a compulsory system, at what stage you wanted the safeguards put in place, but I think you have answered that already. There is another point I would like to ask you about which is raised by what you have told the Committee because you have raised the question of issuing multiple identity cards to one person. I wonder if you could tell us a little bit more about your thinking on that. Ms McNab: The first thing is to understand what the status quo is as it were in that under a common law system it is legitimate for a person to use more than one identity. As long as there is no attempt to defraud there is no problem with people doing that. Indeed there are quite a number of walks of life where people do so. There was one that the Home Office itself drew attention to which was the use of stage names. Another fairly common one is married women who may use their maiden name for professional purposes and their husband's name for social purposes. It would be a very serious step in terms of how people like to perceive themselves if some of these options were to be closed down. That starts to become a problem for trans people partly because of the way in which the medical system works, which is that the process of gender transition, which is often described in the tabloid press as "the op" where someone appears one morning and reappears in the following sex the next, is not quite as easy as that. It is a process of change that takes several years and along the way somebody may well find themselves, in fact I think most trans people do, living in one gender for social purposes and another for work and finally the big step is taken when they have satisfied themselves and the medical advisers that this is the appropriate way forward and so we notify employers and formally change all the rest of the documentation. At the moment such people are living in a situation where they are operating with two identities and it does not really cause a problem most of the time because there is not huge scrutiny of identity for most purposes. We are looking at a system here where identity will be much more tightly scrutinised. If one looks at something where the checks are made all the time, these people are going to find that for a significant chunk of their lives they simply have no identity documents to prove who they are. At the very least there is a risk of humiliation and embarrassment and there is a risk of wasting police time and other authorities' time in unnecessarily apprehending people who do not match the documents. It is actually a very difficult and embarrassing situation for all concerned for those of us who have found ourselves in it. There are further categories of trans people who we believe fall into this situation, as we set out in the submission. One of the ones I particularly want to draw to your attention is that small minority of people who were parents before they underwent gender transition who tend to find, unfortunately, that the family courts take a regrettably hostile view of trans people and their suitability for contact with children. This strongly conflicts with the research and the medical evidence available, but we have not succeeded yet in educating the courts. They are likely to require that a trans person dealing with their young children presents in birth gender. So this may well be somebody who has achieved legal recognition under the Gender Recognition Act as a woman but who is required to present as male for the purpose of dealing with their children. I do not think it takes much imagination to see what would happen on a contact day, a Saturday or whenever, when the children are taken out in the car to go to the park or the leisure centre, all the points at which we could see ID checks starting to come up in terms of driving licences, possible access to services and so on. If the children are being required to encounter a parent who is of a particular gender then the purpose of the court is undermined if the documentation the person is allowed to carry does not support this and the ability of the person concerned to function as a parent to their children in that situation is really undermined if they are going to be encountering legal hassles everywhere they turn. Are they only going to be able to play in their own back garden, which may not be what everybody wants? There are other situations we set out. The point I would like to stress on that is that while most trans people have a very clear objective of moving in a process from one gender to another, there is a journey with a start and a destination, there is a hazy period in between but there is a clear destination, that period in between may be quite short in some cases and quite prolonged in others. I am aware of people who have passed through the major gender identity clinic in this city who have been under treatment for 15 years or more. Q809 David Winnick: As long as that? Ms McNab: Yes. It is rare, but five years would be the average there. That is a very long time to leave people in the situation of ambiguous documentation. The important thing is that as long as there is no ability to defraud through it I cannot see any impediment to the Government in providing for such a facility. What I notice with some concern is that in the consultation document on entitlement cards, either at paragraph 1.09 or paragraph 1.10, there was an explicit proposal to allow people to carry multiple identity cards with reference to the situation of those with stage names. One can imagine that a famous actor may not want their private name to be known and wish to keep the two separate, but that has disappeared from the White Paper. The people I spoke to at the Home Office did not know why it had gone. I am hoping, after further discussions, somebody might be able to remember there. David Winnick: You are putting it on the record. Q810 Janet Anderson: Ms McNab, let us turn to limits on disclosure of information. You say that you believe that it should be possible to limit consent to disclosure, for example of a previous gender or previous names. Is this necessary since verification checks of cards will not in fact give access to the contents of the database or to biometric details? Ms McNab: This may be an area where my understanding of the Bill is inadequate. As a tangential point may I add that it would be helpful for the Government to produce flowcharts of how the process works because I am not sure that I have understood it entirely. What I understand is that while verification of details does not in itself involve disclosure, there is provision in it for a situation where disclosure may be made. I do not claim to have a full understanding of the circumstances in which that could work, but I think I can imagine some where they might say "Can we check the rest of the details on you?" It may come up that they wish to have my address confirmed, my date of birth confirmed, et cetera, that that may be the information which a person wishes to obtain and to which I need to consent beforehand. There are many existing situations where I and the rest of us get used to making such disclosures, so I do not have a particular problem with those in most situations. The question that comes up on that point is what happens to previous names? There are obviously some situations where previous names are relevant data in terms of banking, for example, and it is often a matter that crops up in relation to credit references. It is quite important to be able to match that data and that data flows fairly freely and generally fairly confidentially within the credit reference system, but there are many other situations where it would clearly be extraneous. The situation as I see it is that we will have information stored which will need to be disclosed from the identity system at some point and to which the person will need to be able to consent to disclosure, but it would be very damaging if that information were to be routinely disclosed. I can imagine that for many members of this Committee it might not feel particularly onerous to have previous names disclosed, maybe you would have a previous name before marriage that might be disclosed or there might be some other reason, but in most cases I am sure it would not be a particularly significant issue that you have perhaps changed a first name or something like that. In trans people this is very sensitive information, this is the crucial information about somebody having undergone the process of gender transition. What we would like to see is a situation where we could be faced with a request such as "Can you authorise disclosure of the information on the register?" and allow that to produce the same sort of information as would be available to anybody else, our address, our date of birth and so on, without having to reveal our trans status and to have some heightened degree of protection for that information because if we have just an on/off switch of either permission for disclosure or not then we do risk disclosure. I do not claim to have proper understanding of the Bill as it is at the moment but I would like to draw to the Committee's attention to Clause 16, checks on the register. My understanding of that again may be inadequate, but I am concerned about the situation where a trans person who appears ambiguous in some way in their gender may end up finding that checks are being made on that. Clause 16 appears to set out the possibility of somebody saying, "Oi, can you tell me which gender this person really is? I can see what it says in the ID card", in the expectation of disclosure or when there have been challenges made to the data in various contexts where that information could then be revealed as part of a verification process, ie we are checking up on Ms McNab and we want to check whether she has been appearing as male or female. There is a possibility of disclosure in that circumstance which would be worrying. The mechanisms on which it goes I am afraid I am not clear on. I just wish to raise the possibility as one that needs protection if we are going to maintain the privacy of trans people here. Q811 Janet Anderson: I was going to ask you about what specific restrictions you would like to see, but your point at the moment is you would like some heightened protection. Do you have any suggestions about how that could operate? Ms McNab: The closest I could come to was it was a sub-clause in Clause 14 which would explicitly allow the separation of a heightened form of disclosure with perhaps some restriction of when that could be sourced. Q812 Bob Russell: Based on discussions with colleagues from around Europe where there are identity cards of various sorts, how have they resolved this difficulty that you are explaining to us or have they not resolved it? Ms McNab: I am not sure how that one has operated. I do not have any information on how it is working in other countries. The situation in most continental European countries is of a live register of population and that has led to a different approach to the handling of historical data in relation to names and that may have implications, but I do not know exactly how it goes. Q813 Janet Anderson: Ms McNab, you want Clause 24 amended to give primacy to the privacy provisions of the Gender Recognition Bill. Why is that and what would that mean in practice? Ms McNab: Perhaps the Committee could bear with me while I explain how the privacy protection in Clause 22 of the Gender Recognition Bill works. What it does not prevent is the acquiring of information, it protects the disclosure of it. Obviously the Bill does not protect against gossip. People can gossip away as much as they like and some people do and some do not. What the Bill has tried to do is to protect against disclosure of information required in an official capacity and it makes various exemptions to that principle of non‑disclosure. For example, there is a blanket exemption that disclosure may be made where the person consents, which is reasonable; there is disclosure for the purposes of various law enforcement which is not set out in detail but no doubt will be explained more in the regulations, and it sets out a mechanism by which the information may be divulged. The protected information is the fact that somebody has obtained a gender recognition certificate. There are two primary sources for it. The first one is the gender recognition register itself, which is the part of the births, marriages and deaths registration system which will record the issuing of a corrected gender recognition certificate to acknowledge a change of gender. The second thing is all the records that are held routinely in other situations and that could extend, for example, to employers' records, the fact that they had somebody working for them called John Smith that is now Jane Smith, is protected information that should not be disclosed. Primarily it is a strengthening of good practice anyway. I do not think it should not cause much upset to existing procedures. The important thing on it is that it is preventing onward disclosure. The question of how the information comes in in the first place is limited because of course the access to the primary source of it through the gender recognition register is very limited. There are very few situations in which anybody is entitled to raise a query against that, there is primarily the direct law enforcement purposes. Once we move to an ID card system we will have this information about the status of gender and names and so on circulating much, much more widely. If we take the minimal interpretation of the applicability of the Gender Recognition Bill to the ID card's proposals then all the people who encounter this information are then constrained from passing it on further, which is obviously appropriate, but you have created many, many more points of failure. No system like this which operates a civil penalty after the fact for disclosure can ever be 100% secure. We can expect evidential problems in bringing prosecutions. What we are proposing is to remove any ambiguity as to disclosure outwards to the various agencies under the ID cards Bill. How that fits within it is that that point of disclosure by the National Identity Register officials is the one that is protected under the terms of Clause 22 of the Gender Recognition Bill. In other words what we are trying to do is to try and create fewer points of failure by putting tightened restrictions in there. Q814 Janet Anderson: Would you want the same protection where there is disclosure with consent? Ms McNab: Where there is disclosure with consent I would think that the same principles should apply, that it should be disclosure for a particular purpose. In other words, as with the Gender Recognition Bill, it should be possible to say "Yes, indeed you may disclose to Mrs Anderson for this purpose", but I am not asking her to go and tell all her colleagues. Q815 Janet Anderson: Thank you very much, Ms McNab. Dr Pounder, if I could just turn to you, you say you are concerned by the obligation on individuals to provide data about themselves and to keep it up‑to‑date, but would an obligation on the state to take "all reasonable steps to maintain accuracy" be enough to avoid errors? Dr Pounder: I think this is a niggling point. The Data Protection Act places obligations on organisations to make sure the data are accurate, to take all reasonable steps. What you have in the ID card Bill is basically that obligation being transferred to the individual concerned to tell the organisation processing the data of any inaccuracy. It is basically a minor point in the sense that the obligation normally under the Data Protection Act is on organisations who process personal data to take all reasonable steps to maintain the accuracy. This is now placed on the individual concerned to report facts. One interesting fact in relation to the address information, and there was a discussion in the last session on this, is that I would expect address information to be on the face of the card merely to act as a reminder to individuals to update their address. That was basically the reason why it appeared on the driving licence. I would expect all the variables that are likely to change to be on the face of the card. Q816 Janet Anderson: Including the address? Dr Pounder: Yes. If I was advising government departments I would say we should put the address on the card. Q817 David Winnick: Thank you both very much indeed. We are having our next witnesses now, but if you wish to listen in then of course you may do so. Dr Pounder: I failed to answer Mrs Curtis‑Thomas' question properly about what can be done to fix. If you look at the data protection principles, they are linked to purposes, personal data, adequate, relevant in relation to a purpose. So if you have broad purposes the principle is more or less pushed away. If you have narrow purposes, and I suggest the ones in the Home Office website seem very good, why do we need an ID card scheme to deter illegal working and immigration abuse, then you can judge the principles in the context of the purpose. So that is one fix you could do to narrow the purposes. The other fix that you could do is to follow Lindop's idea. Lindop recognised that government departments are big users of data and they have a conflict of interest. They want to achieve their objectives and to achieve their objectives by basically in a sense using personal data for different purposes or in a sense taking a little slice of privacy away. What Lindop suggested was that an independent regulator should produce a Code of Practice, not the minister or the department itself, and take evidence. In the ID card Bill what I suggest is you could have a Code of Practice. The Information Commissioner could reduce that Code of Practice in consultation with the Home Secretary and not the other way round, and that would possibly help. Q818 David Winnick: We want to get on to our next witnesses. Dr Pounder, you have had the last bite at the cherry. Would you like to have any final comments? Ms McNab: Just to thank you for your time in listening to our points today. David Winnick: I would like to thank you both for coming along today and giving us very interesting information indeed. We are very pleased that you have been able to do so. Thank you. Memoranda submitted by British Medical Association and Commission for Racial Equality Examination of Witnesses
Witnesses: Dr Vivienne Nathanson, Director of Professional Activities, and Dr John Chisholm, CBE, Chairman, General Practitioners Committee, British Medical Association, and Mr Trevor Phillips, OBE, Chair, Commission for Racial Equality, examined.
David Winnick: Dr Nathanson, Dr Chisholm, Mr Phillips, I am very pleased that you have been able to come along and give evidence to us on the whole concept of identity cards. We have received your written documentation and obviously we have some questions. My colleague, Mr Marsha Singh, would like to ask you some questions. Q819 Mr Singh: I think I am right in saying that you support the Government in trying to reduce inappropriate use of the health service but that you are concerned about the possible bureaucracy that that might involve and you are concerned about emergency treatment and infectious diseases. Do you think those areas should be contained within the Bill or are you happy to leave them to Regulation later on? Dr Nathanson: In terms of supporting the concepts behind the Bill and eligibility to access, we are happy with the concept of that being helpful but we have a big caveat about that, which is we keep hearing figures postulated about how much money the NHS spends on patients who have no right of access, but in fact there is no fact on this. We do think it is very important that we actually understand just how much money the NHS is spending inappropriately and how much it could save or otherwise recover, because the cost of the bureaucracy of introducing this system in terms of health alone could be greatly in excess of that, so that major overall caveat should be in place. The question of putting things on the face of the Bill is actually quite important. It seems to us, however, that what we need to make certain of is that the provision of services to those most at need is exempt from the requirement to have the eligibility card with them at the time rather than how that is achieved. It is the outcome that we are most concerned about and we are concerned about that in terms of two different areas. It is both the way in which you describe the care that is excluded, that is emergency care and immediately necessary care or care for certain infectious diseases, we have a very real concern about what those definitions mean. Secondly, there are groups of particularly vulnerable people who might find it difficult to have with them cards at the right time at which they need to access services. So you are looking at a medical model of need and, secondly, a modelling of vulnerable people. If that can be encompassed on the face of the Bill to protect those then that would be fine, but we are equally happy with a system that protects that even if it is not on the face of the Bill. Q820 Mr Singh: When you are talking about vulnerable people, would you include people with mental health problems in that? Dr Nathanson: People with mental health problems or those who just find it difficult to be sufficiently organised to have documents with them, who are frightened of the system, and that will happen particularly with people who have mental health problems but it could happen at different times in people's lives when they face other major crises, when they are feeling particularly vulnerable and it will also happen for more people as they become more elderly. Q821 Mr Singh: You mentioned costs to the Health Service of this system and I was intrigued by that because I cannot see what those costs are. Is it not a simple matter of somebody going along when the ID system is operating and presenting their ID card? Where is the bureaucracy cost in that? Dr Nathanson: The question then is, who is going to test it? Who is going to make sure that it is that person's card? What is the process for that? For example, if we are talking about biometric data that has to be accessed every time services are accessed and particularly perhaps hospital services in, 'are they emergency situations or not', then you could say that we might have to have biometric readers in many different places and, at the moment, those are quite expensive pieces of kit. So, that is one of the costs. The second is that you actually have to have people in place to chase up those who have had care because the care is needed but perhaps not covered under the immediately necessary and therefore they are not eligible for free care and you have to chase them to get the money back. Clearly, there are some hospitals, for example, in the UK where there may be substantial amounts of care offered to people who have no right of eligibility for the NHS and who already have systems in place to chase that and who may get quite good recovery of significant sums but, for many other units, it might be so rare that to have somebody in place and machinery in place may be a complete waste of money and it is that balance that concerns us. Q822 Mr Singh: I know that you are particularly concerned about GPs policing access to healthcare and certainly smaller practices or single practitioners; do you think that is going to be a particular problem? Dr Chisholm: I think that certainly as far as general practitioners are concerned, they would be concerned about the workload implications of any system and, if it is relatively simple and non-bureaucratic as a way of proving entitlement, then I think that general practitioners are broadly supportive of the approach that those who are entitled to receive NHS care should be enabled to receive that care and those who are not entitled should not receive care at public expense. I do think there are issues about the simplicity of the system and I think that, as far as general practice is concerned, I would like to distinguish between the steps that might be taken when a patient is seeking to register with a practice and what they do each time they receive care and our preference would be that they would establish their entitlement at the time of registration with special and appropriate arrangements being made for the frail, the vulnerable, those lacking capacity and those with mental health problems in order that they are not denied the care they need purely because they are finding problems with the system. I would like to make that distinction between registering with a practice and the routine need to prove entitlement each time that a patient is seen. I think also there are issues about checking the biometric data. I think there is a world of difference between, let us say, a receptionist checking a card and a photograph on a card compared with the need to check fingerprints or check iris data or whatever, which clearly would have significant workload implications and also significant implications in terms of cost to the public purse. Q823 David Winnick: Is this a problem at the moment regarding registration? If someone comes along to a GP surgery to register, surely there are certain checks which already occur. Dr Chisholm: In general, people register in one of two ways: they either bring along their medical card or they do not and, if they do not, then another form is filled in which relies on them providing information about their name, address and date of birth. The checking is then done by the primary care organisation so, in England, the primary care trust, the equivalent organisations in the other three countries, rather than the checking being done by the primary healthcare team. Doctors and their staff do not actually themselves take any steps to confirm that an individual is living where they say they are living. Q824 David Winnick: It is not really their job, is it? Dr Chisholm: No, it is not their job and obviously the patient has a vested interest in giving the address in that although most care is now premises based, if they are requiring a home visit, it is helpful if the address matches up. Dr Nathanson: One of the key issues as well is the concept that, when patients register with general practices, very often, people do not move to a new area and think 'where is the GP?' and go and register, possibly with the exception of mothers with young children who are more likely to. Many others only register when they suddenly need care, when they are acutely ill and, in those circumstances of course, doctors would usually provide the care, if it were necessary, while the process of the checks are going on. Q825 Mr Singh: Maybe we are making a mountain out of a molehill. If a person's rights or entitlements are established when a person first registers with a GP, then, if the GP is referring them for medical treatment to hospital, the GP could confirm that person's entitlement. So, there does not need to be another check at the hospital level. The only real issue would be emergency care in terms of hospitals. Dr Nathanson: Yes except of course that very often people go to hospitals in situations which are not necessarily full emergencies but are this 'somewhere in between' being dealt with in primary care. In other words, whether it is an appropriate or inappropriate use of the hospitals, that is where people will get some of their care and they may not have been registered with a GP. It is particularly likely of course that people will go to hospitals for care which a GP could provide if they are not registered, so that is both transient populations but also populations who just have not got round to registering. That may even be increasing with the difficulty of recruiting more people into primary care at the moment. So, yes, for the patient who is registered with a GP if the check is done at registration, it is not a problem in terms of access to the types of secondary care which would be excluded from the emergency provisions, that is the elective care. That would all be covered in the one check. The problem is the person who turns up at hospital needing urgent-ish care, as it were, and it does take us into this long and complex problem of how you would model what is immediately necessary care, which is quite important. Q826 Mr Singh: Would it not be better, rather than trying to deal with these issues through legislation, to deal with them through codes of practice which can be tested and improved and tested and improved? Dr Nathanson: Absolutely and one of the things we are doing at the moment is that we are talking already to both the health departments and to the Home Office about the ways in which we would want to see a system work, whether by codes of practice or regulation or in whatever way it is set up because we think it is very important that the system which is designed to protect the public purse from inappropriate use does not in fact damage the health either of individuals or of the public more generally. Q827 Mrs Curtis-Thomas: I understand when you say that the costs associated with people who access medical services when they have no entitlement to do so is not known. This Committee knows that we have a number of people in this country who have accessed the country illegally and are working illegally and presumably they also seek health services as and when the need arises. So, perhaps the problem is significant. I just want some clarification from you because I think what I am hearing is that doctors have a reluctance per se in asking people for identification and is that true and, moreover, would there be an attempt, for instance, if somebody presents with a medical health problem, to retrospectively ensure that that individual was in fact eligible for health services? I hear you talking about significant parts of the population being exempted and then the presumption is that they will not be checked either because their condition makes them not automatically the excluded special interest group. Dr Nathanson: We are not saying that they should be exempted but we are saying that if people who are clearly particularly vulnerable at that time or even permanently arrive needing to access care and do not have an entitlement card with them, then the presumption must be to treat them if that care is needed. That is not to say that you should say that these people would never have cards because there may be other very distinct advantages to that card. The issue about cost is an important one and there is ongoing research to try to find out just how much use is made of the NHS in its various forms, as it were, by people who are not strictly entitled to it by a number of bits and pieces of research. Looking particularly at secondary care, in secondary care, most hospitals, particularly those with the more transient populations or in areas where there are more likely to be or it is thought that there are more people who have no eligibility, already have systems in place for doing this. For example, areas where there is a large tourist population. Hospitals have long had a system when people access care of finding out if they are eligible and billing them if they are not and recovering most of the money - it is a majority, as we understand it, that is recovered in that way. There are other areas where they probably do not see more than the most minute number and it may actually be not cost effective to chase those. That is not saying that they would not want to if they could but we have to again make sure that the bureaucracy does not cost more than the money it is meant to recover. In terms of care, it does take us always back to this issue about how you define the care that is needed and, in a sense, what we are looking at here is a medical modelling which is what we would prefer to find because, if you have the right modelling for care, it relieves a lot of our concerns about the processes because it means that people who are vulnerable because they are acutely ill for whatever reason will get the care that is necessary and we would actually argue that it is necessary not just on humanitarian grounds but that it probably makes good economic sense as well. Q828 Mrs Curtis-Thomas: So, you would argue for exclusion for those? Even if they were not covered by identity, they should still have access to free care? Dr Nathanson: If people need care, they must receive it. Q829 Mrs Curtis-Thomas: So, you are saying that? Dr Nathanson: Yes. Let me give you an example and the kind of example we would look at is that of somebody who has been an asylum seeker and who has now been denied permission to stay and are waiting to leave the country. They no longer have access, they are not eligible to full NHS care. We are not suggesting, for example, that people in that situation will be put on an NHS waiting list for a hip replacement, that would be inappropriate, but let us suppose that that individual has insulin-dependent diabetes and they have no money and they cannot afford to pay for the insulin prescription. We could end up in the daft situation where they go into a coma because they are not getting their insulin, they are admitted to hospital and they get the full emergency treatment which they would get even though they are not eligible for other care because emergency care would be provided. They get better, they get sent home with a small supply of insulin; they run out of that, they cannot afford to buy any more, they again decline until they are in a coma and again are in emergency treatment which costs a lot of money whereas ongoing provision of free insulin would cost us almost nothing. It is that kind of model that we are concerned about. What is emergency and immediately necessary care? Antenatal care, care for somebody with a number of very serious medical conditions but where they are not going to die tomorrow if we do not give them care immediately, so it may not be immediately necessary, but the cost in terms of their health problems and potentially the cost to us as we have to deal with them when they become emergencies could be substantial and we just think that that is a grouping that needs to be looked at very carefully. Q830 David Winnick: It might be supplied as common humanity. Dr Nathanson: Indeed, but one could also say that it does not make economic sense as well which is always a good backup for common humanity! Dr Chisholm: Essentially, we are asking for sensitivity and discretion in the application of the system in two particular areas: one of them is in relation to vulnerable patients where the system ought to exercise sensitivity and discretion in deciding whether care is provided if they are, because of their vulnerability, finding problems in producing or dealing with the bureaucracy of the system. The other area where sensitivity and discretion is required is in the areas that Dr Nathanson has been describing, the borderline between emergency and immediately necessary care and care that is not so defined, and I think that allowing some sensible discretion there is going to be wise in order to prevent the very problems that have been described. Q831 Mr Prosser: Dr Nathanson, I just want to pursue the same theme a little further. All of us would give sympathy to the cases you have given and, if nothing else, we want commonsense written into the Bill but how would you actually write those sorts of sensitivities and those sorts of discretions into the Bill? Can you look at other legislation with respect to the duties and limitations that the medical profession carry out where there are clauses and the draftsmen have come up with remedies which provide you with the comfort you want and that we all want? Dr Nathanson: I think, sadly, we have not found anything in any legislation that gives this kind of protection, but there are some examples that we can look at in regulations that have come out of legislation that gives a degree of this and that is the sort of thing we would like. We would like to see doctors working with Government departments to write regulations which are sensible and which do not undermine the Bill but in fact bring into it this humanity which would actually make it work and which will actually, I think, significantly reduce people's fears, certainly in terms of the health area. Q832 Mr Prosser: Do you think it should be widened to other vulnerable people, people who are addicted to alcohol or to drugs, people with chaotic lives? Dr Nathanson: I think we would want to see in the regulations the ability to act flexibly for those people. The difficulty is, do you want to prescribe it very precisely because for many people say with drug dependencies including alcohol dependency, for much of their life, they are not living in such a chaotic state that they could not use the system as it is designed, but there may be times in their lives when they cannot produce the right evidence of identity and they may be the people who are, at that time in their lives, moving away from where they had previously been registered and that is where again there is this issue of having some flexibility to treat in the hope of returning them to a state where they can then cooperate with the requirements of the regulations or of the law. Q833 Mr Prosser: Is it not the case that, even at the moment under whatever regulations and limitations persist now, every day GPs in the surgeries and consultants are using commonsense and applying discretion in a humane way and in a sensible way? Dr Nathanson: Yes, absolutely, and, in talking to colleagues last week, we were given examples of the way in which somebody working in an accident and emergency unit would say to somebody who was not eligible for NHS treatment, "No, that is not something that would require free treatment. That is not something where your illness/medical condition is such that it would be an emergency or something immediately necessary" and in fact they find when saying this to the patient that they say, "You are the fourth hospital that has told me this; maybe I should try giving up getting access to this" because there is clearly a consistency. In fact, I think there is remarkable consistency on most patients. There will be occasional patients on whom two doctors might slightly disagree but it would be rare. Q834 Mr Prosser: Mr Phillips, in your evidence, you talk about being able to convince all communities that the new potential ID cards will not disadvantage them or discriminate against them etc. Do you want to amplify on that now that you have seen the draft Bill? Mr Phillips: Yes. I think there are a few simple points here. First of all, there is a pretty profound lack of evidence about the potential impact on different ethnic groups and communities in this country. One of the first things that we notice is that we still have not yet had a proper race impact assessment on the proposal and we think that would be an important thing at this stage plus, were there to be a move to a compulsory scheme, that would also need a separate impact assessment. Secondly, there is the issue of perception in that, whether or not the proposal is favoured, it will certainly without any doubt cause some anxiety amongst many minority communities in this country. There is some evidence from the Home Office's own survey on this with the focus groups and so on and they are questions which are still unanswered. For example, foreign nationals who might be the first category to carry them compulsorily and that in itself raises a question but the issue is, who is a foreign national? Some people who have lived here for 30 years are still foreign nationals and you might have situations in which two people in a house out of seven are compelled to carry identity cards. The third point that I want to make particularly in relation to minority communities is that there is a question which you have to some extent been hinting at which is what is on the card. To what extent it is an entitlement card and to what extent it is truly an identification card because there is a point at which, with certain kinds of information, there ceases to be an identity card and becomes, from the point of view of some minority communities anyway, an immigration status card and that in itself potentially creates some substantial issues. Q835 Mr Prosser: Do you have any way of addressing that in the Bill? Have you given any thought to a form of words which would address those concerns or would you want separate regulation outside of the Bill? Mr Phillips: The first thing would have to be, as I said, a proper impact assessment but, in relation to the Bill itself, I think that the most important thing would be to establish that there would be minimal information on this card. There are issues about what would be on the register and so on. We think, for example, for a whole variety of reasons, anything that goes beyond purely biometric information becomes a problem. It is one thing to have a card which identifies you but a card which moves into the arena of discretion raises a number of things. Once you are into entitlement, what then happens, and we know - and I can elaborate on this if you wish - from other experiences is that what tends to happen, with the best will in the world, is that those who have to do the checks will apply a differential filter as to who they ask to produce the card. So, at the moment you have a piece of information which can be demanded which might differentiate by ethnicity and so on, then you create a different sort of problem. One other point which perhaps is not quite so obvious but is one that I think will be raised by a number of communities is the issue about the cost of change of information and keeping the information up to date. If you are going to be fined £1,000 or whatever it might be if you do not keep your information up to date, this will undoubtedly have a differential impact on different kinds of communities particularly, for example, the 100,000 or more gypsies and travellers in this country who are not settled. If there is an address on the card and they have to keep this up to date every time they move, we can begin to see chaos, catastrophe and all sorts of problems there. I think that the summary is, first of all, let us understand exactly what might happen and there are techniques by which we can do that before we get into passing legislation but, secondly, in the legislation, I think any pressure or anything that will reduce the amount of information held on the card to that which is essentially biometric, which by the way could include ethnicity, is helpful. Q836 Mr Prosser: As you know, for the last two years or so, people who have been making asylum claims in the country have already been provided with an identity card which is called an ARC card which has a biometric chip on it. Has the introduction of that card made it easier for asylum seekers by proving their identity very clearly and precisely or has it caused some of the problems which we have heard about not necessarily in today's evidence but the general sort of evidence and critiques about identity cards? Mr Phillips: The upside of the ARC is that it has, I think in many circumstances, made it simpler and quicker for people to identify themselves and therefore in relation to, for example, illegal working, this is a plus. However, I think that there is an issue that arises which is to do with the updating of the system, which we have some anecdotal evidence of in relation to the ARC, the application registration card, which is that we know that, if people have to continually update their cards, especially if they are not entirely settled and so on, there are all kinds of real practical and organisational difficulties that gives rise to and, yet again, we have the issue about the £1,000 civil penalty for not updating. This again comes into play here. So, the signal from the ARC is that it may make things quicker but, in terms of the proposal that is made in the Bill, it could create difficulties which are quite severe for some ethnic groups. Q837 Bob Russell: Six months ago, the Home Secretary announced the award of contracts to run the NHS care record scheme which will provide all 50 NHS million patients with an individual electronic NHS carer card which will detail key treatments and care within either the Health Service or social card. Do we need an identity card as well or should that information be put on the identity card? Dr Nathanson: There are several points here. The first is that this is a grand scheme and we are all hoping that it will work because there are huge advantages to all of us in having a single electronic health record. It is the classic thing where you are knocked down by a bus when you are nowhere near home and they need to know whether you have allergies, whether you are under any other medical treatment and so on. Q838 Bob Russell: Would the individual have that card? Dr Nathanson: The individual under the NHS scheme will not have a card at the moment on which there will be health information, so there are key questions here about how you will identify that the patient here is the person to whom this record applies, although there will be a standard NHS number applying to each individual. At the moment, there is not a single NHS number, just to make life complicated, and we actually potentially have different numbers, particularly if you move north and south of the border with Scotland, but there are moves to simplify that. This is one of the things that has been recognised for many years. Also, if you go into one hospital, those notes will never get to another hospital. So, it is linking all of that together. One could very cynically say, name a major public sector scheme's computerisation that has worked flawlessly, but that is because I am terribly cynical about this. There are real issues of potential good from this. The benefits of an ID card in relation to that might be if the majority of people normally always carried an identity card. Then, when they are knocked down by the bus in another city, it would be the card that identified them, that fed into the machine in the hospital to which they are taken and that brought up the key things on their records and that could potentially be advantageous but I think we are very many years away from that at the moment. Dr Chisholm: There are other reasons why identity cards are being proposed and I think that it would be inappropriate to have medical information contained on the identity card. Q839 Bob Russell: Why? Dr Chisholm: Our wish is that such information should be excluded. Why? Not least because we would want the public to be reassured that other people who had access to their identity card were not able to access personal health information. I think that will be, irrespective of technological solutions, a genuine fear in terms of public perception. I think that, as Dr Nathanson has said, it is possible that the ID card might in some way help to link to the electronic patient record in terms of healthcare professionals who have a need to know information, but I think that our preference would be basically to keep the two systems separate and not to include medical information. Q840 Bob Russell: I recognise the powerful point that you make there but what about blood group on identity cards? Dr Nathanson: We would want to ask what the advantage was in having a blood grouping. Q841 Bob Russell: If you are knocked down by this bus in the other town. Dr Nathanson: If you are knocked down by a bus and it just said that you were ABO group, which is the common blood group, they would not in fact give you that without actually checking it. It takes seconds to check ABO group and what actually happens that takes longer in the lab is far more complex than that and, although I have been a blood donor for many years, I do not know all those complex bits about my own. So, it is unlikely that you would actually have that information for most people. We would have concerns, for example, about allergies. Let us say that it said on your card that you had no allergies and it had not been updated - and I think cards often will not be updated - and then perhaps you might have become seriously allergic to something noticed fairly recently. I think doctors would be reluctant to rely upon information on a card that was not constantly updated. The point about the national electronic health record is that every time you see a doctor or other healthcare worker, it will be updated and it may in the future also, I hope, have patients able to input data as well so that we really do mean that it is a real time record of what is happening in the patient's life in health terms. Q842 Bob Russell: Mr Phillips, do you believe that the onus should be on the Home Office to update the information such as immigration status? Mr Phillips: Yes. I would just like to qualify that by saying that I do not think the immigration status really ought to be on the card at all. Q843 David Winnick: As regards illegal workings, it is argued that one of the purposes of the identity card scheme is that it would undermine to a large extent illegal workings. We are all against what happened recently: the Morecambe tragedy and the 58 Chinese who were suffocated trying to get here. You make the point in your evidence that unscrupulous employers do not check on existing documentation. So, are you saying in effect that if they do not check on existing documentation, why should they worry about the identity card? Mr Phillips: You state the case almost precisely. The case really is, does this offer a better possibility of preventing exploitation and abuse than the current situation? If there is no extra incentive on the employer to check status than there is currently, there may be many other virtues but it is rather hard to see why this would be a particular virtue of the introduction of the scheme. Q844 David Winnick: You stress the importance in your evidence of, and I quote, "effective and unbureaucratic recourse to an independent body that can investigate practical abuse of the ID scheme by individual police officers and other authorities at street level." You are concerned about that because of what has happened before, stop and search presumably? Mr Phillips: First of all, let me repeat what I said at the beginning. There is no evidence that the introduction of an ID scheme internationally has been used differentially in that way but there is certainly a clear perception amongst ethnic minority communities that it is likely to produce that effect and, in a sense, the perception of the introduction of the card itself is the problem, whatever the actual outcome will be and I would suggest that it will take some years to establish what the fact is. The actual introduction of the card would create a great deal of uneasiness within those communities. One way in which that uneasiness might be dealt with would be for the Ombudsman who, as I understand it, in the Bill now would essentially have the responsibility for monitoring the Home Secretary's disclosure but he or she would also have the duty of monitoring this kind of thing, differential use. However, in order to do that, we would have to have a proper system of monitoring by ethnicity which is why I said earlier that I thought that ethnicity might be one of the elements of biometric information that a card might need to carry. One last point on that, if we did that of course, one of the things that one would have to be quite careful about is that technology could actually read. I have some experience, having been in the television industry myself, of cameras which cannot tell who is black and who is white or, alternatively, they cannot see if you are black. That is my unpleasant personal experience. Q845 David Winnick: I can understand that. Mr Phillips, it is said that the Muslim community at the moment are subject to some feeling of acute if not harassment nevertheless suspicion. As we obviously all know, the overwhelming majority Muslims are totally law abiding, no less than ourselves. Do you feel there is a certain sensitivity with the introduction of ID cards on that particular community bearing in mind the ever acute danger of terrorism? Mr Phillips: Once again, justified or not, there would be anxiety, there would be unease within that community, not, I would venture to say, for any reason that could easily be articulated but there would be a sense that here is another way perhaps of picking on a particular community and that is really the problem here, that there is a disjunction between what might be true and what people feel to be true and our concern here is that what people feel might be true is what will have an impact on community relations. Q846 Mr Winnick: Have you been approached by a representative of the Muslim community on this particular point about the ID card? Mr Phillips: It is not something on which we ourselves have encouraged approaches yet, but we are in the process of consulting on this very issue at the moment. There are Muslim members of the Commission to whom I am speaking about this and I am hoping that once we have been able to go through that process - and we have set up a small, internal group to listen to people and to take, not necessarily evidence but soundings - we can probably say something more coherent. Q847 Mr Winnick: I wonder, Mr Phillips, arising from what you have just said, whether you could send us a note that you consider would be useful for us to have when we are considering our draft report? Mr Phillips: We are very happy to do so. Q848 Mr Winnick: I do not know when you are meeting but it would need to be in the next couple of weeks, really. Mr Phillips: If you tell us what your timetable is we will endeavour to meet it. Dr Chisholm: Could I just make one point which has not come out in the questioning? We touched on professional resistance to the idea that doctors will be forced to refuse treatment to patients genuinely in need but unable to afford payment, we have touched on the importance of protecting public health and preventing the spread of infectious diseases, but there is one other issue which is that we are concerned about the possibility of doctors being required to pass on information about ineligible applicants to third parties, such as the police or the Home Office, which would, I think, deter people from seeking the care that they need. We would, I think, very much seek assurances that doctors would not be placed in that position of being required to pass on information. Q849 Mr Winnick: That is a very valid point, indeed, and I am glad you have made it. Is there a final point you want to make, Dr Nathanson, Mr Phillips? Mr Phillips: The only final point I would make is evidence: we need evidence of what is likely to happen here, so monitoring is, in our view, a sine que non here. Q850 Mr Winnick: Can I thank the three of you for coming along? It has been very useful indeed. Mr Phillips: Thank you.
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