House of Commons - Explanatory Note
Identity Cards Bill - continued          House of Commons

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Clause 9: Renewal of ID cards for those compulsorily registered

66.     This clause provides for the renewal of cards for those individuals who are required by clause 6 of the Bill to be entered into the Register.

67.     Subsection (2) makes it a requirement for individuals whose card will expire in the prescribed period or whose card is not valid to apply for an ID card within the prescribed period.

68.     Subsection (3) gives the Secretary of State the power to require an individual applying for an ID card under this clause to do certain things so that the Secretary of State can verify the information provided and ensure the accuracy of the Register. Subsection (4) sets out what these requirements might be and includes personal attendance at a specified place and time, the recording of biometric information, being photographed and providing such other information as may be required.

69.     An individual who fails to renew or to provide the information requested to verify an application is liable to a civil penalty not exceeding £1,000 (subsection (5)).

Clause 10: Functions of persons issuing designated documents

70.     A designated documents authority is defined as an issuer of a designated document. This clause sets out how common standards will be set for all designated documents authorities in carrying out their functions in relation to the Register and ID cards.

71.     Subsection (1) requires that a designated document may only be issued if the designated documents authority is satisfied that:

  • the requirements imposed by or under the legislation in relation to the application for the issue of that document to that individual have been complied with;

  • the Secretary of State has considered and disposed of so much of the application as relates to the making of an entry on the Register or the confirmation (with or without changes) of the contents of such an entry; and

  • it has ascertained whether the individual already holds a valid ID card.

72.     Subsection (2) requires that, where a designated document is issued to an individual who does not hold a valid ID card, the designated documents authority must ensure that the document is issued with an ID card (as defined in clause 43(6)). This provision ensures that the issue of a designated document is linked to the issue of an ID card only where someone does not already hold a valid ID card.

73.     Subsection (3) sets out in more detail the requirements that may be imposed on designated documents authorities, regarding:

  • how applications made to them for entry on the Register are to be handled;

  • how applications to be issued with ID cards made to them are to be handled, whether they be stand-alone applications or made with applications for designated documents; and

  • how applications made to them confirming an individual's entry to the Register are to be handled.

74.     Subsection (4) allows the Secretary of State to make regulations requiring those issuing designated documents to notify the Secretary of State where a designated document is modified, suspended or revoked; or required to be surrendered.

Maintaining accuracy of Register etc.

Clause 11: Power to require information for validating Register

75.     This clause deals with the provisions necessary to permit data to be shared with the Secretary of State and designated documents authorities for the purposes of verifying information to be placed or which is currently placed on the National Identity Register where no such powers already exist. This is specifically about ensuring the accuracy of the Register and it does not confer the power to share data for wider purposes; neither does it allow the Secretary of State or a designated documents authority to request information that is not relevant for the purposes of validating the Register. Under this Bill, Parliament will have to approve each "gateway" via an affirmative order.

76.     Subsection (1) places a duty on a person to provide information to the Secretary of State for the purposes of verifying an individual's entry to the Register. Subsection (2) extends this obligation to disclose specified information to the designated document authorities. This obligation is mandatory (subsection (3)) and over-rides other obligations under which the person may hold that information. Subsection (3) also enables the Secretary of State to require the information within a specified timescale.

77.     Subsection (4) sets out that the requirement may be imposed on any person specified for the purposes in an order, for example local government or the private sector. Subsection (5) clarifies that this could also include for example, central government organisations and the devolved administrations in Northern Ireland and Wales. The order making provision to require information is subject to the affirmative resolution procedure (subsection (8)).

78.     Subsection (6) provides that orders requiring a person to provide information may be enforced via civil court proceedings. In the case of public authorities, normal public law remedies such as judicial review will apply.

79.     Subsection (7) enables the Secretary of State to pay those from whom he is requiring information to be provided.

Clause 12: Notification of changes affecting accuracy of Register

80.     This clause sets out how changes in circumstances should be notified in order to maintain the accuracy of the Register.

81.     Subsection (1) places a registered person under a duty to notify the Secretary of State of any change in his circumstances that may be prescribed, for example, change of address or change of name, and to notify the Secretary of State of every error in the information held about him of which he is aware. This will enable the Register to maintain accurate information. The notification procedures are to be set out in regulations (subsection (2)).

82.     Further information may be required to verify the information that may be entered as a consequence of the notification or to ensure that the entry is up to date (subsection (3)). This requirement to provide further information may include personal attendance, being photographed, allowing biometric information to be recorded or otherwise providing information. Again "fingerprint" and "biometric information" are defined in clause 43(1). The information that may be required by regulations under this clause may only be required if it is consistent with the statutory purposes (subsection (5)).

83.     Subsection (6) provides that the maximum penalty for failure to comply with a requirement under this clause is a civil penalty of £1,000.

Clause 13: Invalidity and surrender of ID cards

84.     This clause covers invalidity and surrender of ID cards.

85.     Subsection (1) provides that regulations can prescribe the manner in which, if the individual knows or has reason to suspect the fact that an ID card has been lost, stolen, damaged, destroyed or tampered with, he must report this to the Secretary of State or other person as prescribed. If a card was issued based on inaccurate information, requires modification or has been lost, stolen, damaged, destroyed or tampered with, or is of a particular sub-set of cards (for example where security has been compromised), or if the holder of the card's entry has been modified, then the card may be cancelled (subsection (2)). "Damaged" includes becoming unreadable or unusable and "tampered with" modified or copied for an unlawful purpose (subsection (8)).

86.     Subsection (3) provides that if a person is in possession of an ID card which does not belong to him, without the authority of the individual to whom the card was issued or permission from the Secretary of State, he must surrender it.

87.     The Secretary of State may require a person to surrender an ID card that is not his, is invalid, is of a sub-set of cards the Secretary of State has determined should be re-issued, or where an individual is in the possession of an ID card in contravention of a relevant requirement. It may be necessary for example, when renewing an ID card to surrender the old card at the time of re-application. Sub-sets of cards may also need to be surrendered, for example, where the security has been compromised. The card must be surrendered within such period as the Secretary of State may specify (subsection (4)).

88.     It is an offence not to surrender in these circumstances and an offender is liable to imprisonment, in England and Wales not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (currently £5000) or both (subsections (6) and (7)) and in Northern Ireland and Scotland to imprisonment not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or both.

Provision of information from Register for verification purposes etc.

Clause 14: Use of information for verification or otherwise with consent

89.     This clause enables the provision of an identity verification service which operates with the consent of the individual, including an accreditation requirement for user organisations and their equipment.

90.     Subsection (1) gives the Secretary of State the power to provide a person with certain information recorded in an entry about an individual provided that individual concerned consents. Provision of information includes confirming that the information is or is not recorded in his entry (clause 43(7)).

91.     Subsection (2) provides that only a limited part of the individual's entry on the Register may be provided to a person under this section. This includes information within paragraphs 1, 3 and 4 of Schedule 1, the photograph, signature, information concerning whether the ID card is valid, voluntary information, security questions, the grant/refusal of confirmation that submitted information falling in subsection (3) matches that which is held on the Register and the grant/refusal of confirmation that the individual's entry does not contain information of a particular description within that subsection. This might be necessary for example to verify the identity of an individual whose biometric could not be recorded at the time of enrolment (e.g. because of a medical condition). This limitation on the information that may be checked means that information falling in other parts of Schedule 1, for example the records of provision of information and validation information, may not be provided to organisations verifying identity under this clause.

92.     Subsection (2) also allows the confirmation of information (as opposed to the provision) falling in subsection (3). This information includes biometric information (including fingerprint), passwords, codes, security numbers and security answers.

93.     Subsection (4) enables the Secretary of State to amend by affirmative order subsection (2) and (3), and further allows regulations to be made further restricting the information that may be provided under clause 14. This could be used for example, to ensure that certain categories of people do not have certain information about themselves provided to other organisations, for example where it might be sensitive as in the case of previous names of transsexual people. This power may also be used more broadly to restrict further the information that is provided to specific types of organisations where all the information falling under 14(2) is not necessary for their verification purposes. These regulations would be subject to the affirmative resolution procedure.

94.     Subsection (8) ensures that the restrictions on the provision of data under clause 14 do not interfere with rights to be provided information under other Acts, for example subject access rights under the Data Protection Act 1998.

95.     Subsection (5) provides a power to make regulations subject to the negative resolution procedure prescribing how an authority is to be given, the persons who can make an application and in what circumstances an application may be made and how an application can be made.

96.     This clause would enable an accreditation scheme to be established so that only those organisations that have been approved would be able to make checks on the ID cards of individuals who have consented to verification checks against the Register. Regulations may include a requirement that to be provided information, the applicant must have first registered certain details with the Secretary of State, that the person and the applicant for information have been approved in the prescribed manner and the equipment being used is also accredited (subsection (6)).

97.     Clause 41(6) sets out in more detail what regulations for the approval of a person or of apparatus might include.

Required identity checks

Clause 15: Power to make public services conditional on identity checks

98.     Identity Cards - the next steps (Cm 6020) sets out two objectives for the use of identity cards in relation to public services. These were to simplify checks on eligibility for services and to reduce fraudulent use of services. This clause provides a power to make this link between the identity cards scheme with the provision of public services in cases where existing powers may be unclear. Clause 43(2) defines what is meant by the provision of a public service.

99.     Subsection (1) provides a power to make regulations which allow or require a person who provides a public service to make it a condition of providing the service that an individual produces an ID card and/or other evidence of his registrable facts. This will give service providers flexibility in deciding what proof of identity is the most appropriate in the particular circumstances and what level of identity check is necessary. The ID card on its own may suffice. Alternatively, someone's identity could be checked against the Register, using for example a biometric, when the card is not present.

100.     Subsection (2) ensures that regulations made under subsection (1) cannot make it a requirement to produce an ID card or information which can be verified against the National Identity Register in order to receive payments provided under legislation or any service provided free of charge before it is compulsory for that individual to register under clause 6. This means that an order under clause 15 cannot make it a requirement for a person to produce a card, for example to receive social security benefits or free NHS treatment, until it is compulsory for that person to register under clause 6.

101.     Subsection (3) specifically excludes the possibility of an order under clause 15 making the carrying of cards compulsory. This includes both the carrying of a card and its production on demand other than for the purposes of an application for a public service.

102.     Clause 44(2) provides that the powers under this clause do not extend to public services provided in Scotland that are within the legislative competence of the Scottish Parliament. If the Scottish Parliament wishes to make production of a card a condition of provision of those services, it would first have to pass its own Act.

Clause 16: Procedures for regulations under s. 15

103.     This clause sets out the procedure for making regulations under clause 15, including how this will apply to devolved administrations.

104.     Subsection (1) sets out who may make regulations under clause 15. Where the provision of public services is the responsibility of the National Assembly for Wales, only that Assembly may make regulations under clause 15. In Northern Ireland, the power to make regulations under clause 15 is exercisable by such Northern Ireland department as may be designated for that purpose by order made by the Office of the First Minister and deputy First Minister. Where this power is not exercisable by the Northern Ireland Assembly or a Northern Ireland Department, the Secretary of State may make regulations.

105.     Subsection (2) clarifies the meaning in subsection (1) of the provision of Welsh public services as those which the National Assembly for Wales has functions and of Northern Irish public services in so far as the regulations relate to the provision of services in the transferred field.

106.     Regulations made under clause 15 must be approved by a resolution in both Houses of Parliament in the case of regulations made by the Secretary of State; and in the case of regulations in Northern Ireland, they must be laid before and approved by the Northern Ireland Assembly (subsection (3)).

107.     Under subsection (4), before any regulations are made there must be steps taken for ensuring that members of the public likely to be affected are informed and consulted on the proposal. Subsection (5) provides that this must include the reasons for the proposal and why existing provisions are not sufficient to make an order under legislation governing the particular service rather than relying on an order under clause 15 of the Identity Cards Bill.

108.     Subsection (6) requires there to be consultation with interested parties, for example the providers of a public service, before any regulations are made under clause 15 if there is an equivalent requirement in other legislation governing that service to consult these interested parties.

Clause 17: Power to provide for checks on the Register

109.     This clause provides a power to the Secretary of State to enable checks to be made of information recorded in the Register by people providing public services. It also gives the Secretary of State the power to regulate identity checks, including an accreditation scheme for user organisations and the equipment they are using.

110.     Subsection (1) enables the Secretary of State to make regulations allowing the provision of information to a person providing a public service for which regulations under clause 15 have been made or in respect to which any other legislation makes it a condition to produce an ID card or any other evidence of registrable facts recorded on the Register. This must be for the purposes of ascertaining or verifying information of an individual applying for the public service.

111.     Subsection (2) provides that regulations may specify the manner in which applications for checks of the Register are to be made, the persons and the circumstances in which the application may be made, the information that may be provided and the manner in which the provision of information is to be made.

112.     Subsection (3) provides that the provision of information may be made dependent on the applicant registering particulars about himself, that the person and the applicant have been approved in the prescribed manner and the equipment is accredited. Clause 41(6) sets out in more detail what regulations for the approval of a person or of apparatus might include.

113.     The regulations are subject to an affirmative resolution procedure (Subsection (4)). Before any draft regulations are laid before Parliament, the Secretary of State must take steps to ensure that members of the public in the United Kingdom are informed and consulted on any proposals (Subsection (5)).

114.     Subsection (6) ensures that "enactment" for the purposes of this section includes an Act of the Scottish Parliament. This means the rules governing provision of information from the Register are uniform throughout the UK.

Clause 18: Prohibition on requirements to produce identity cards

115.     This clause makes clear that there may be no requirement on individuals by organisations to produce an ID card as the only acceptable proof of identity before a move to compulsion under clause 6, other than in the circumstances set out in subsection (2).

116.     Subsection (1) makes it unlawful for any person to demand an ID card or demand the individual give authority for a check to be made on the Register under clause 14, as a condition of doing anything to an individual e.g. providing a service.

117.     The exceptions to this are set out in Subsection (2). These include where there is a specific requirement for a check on an individual's ID card or against the Register under clause 15 or in accordance with provisions under another enactment; where the organisation allows for reasonable alternative methods of proving identity; or when it is compulsory for that individual to register.

118.     Subsection (3) makes clear that this prohibition in subsection (1) may be enforced by the individual in the civil courts.

119.     Subsection (4) ensures that Acts of the Scottish Parliament are included in the definition of an enactment within this section. Therefore if the Scottish Parliament decided to make it a requirement under their legislation to use the identity cards scheme as a condition of the provision of a service, it would not be prohibited under this clause.

Other allowed uses of registered information

Clause 19: Use for purposes of public authorities etc.

120.     This clause provides the power to provide specified information held on the Register to public authorities or other specified persons for specified purposes without the consent of the registered person. Subsection (1) allows for this provision so long as it is authorised by this clause and complies with clause 23 (which sets out the rules for using information without an individual's consent).

121.     Subsection (2) provides that information may be provided without consent of the individual to specified national security and intelligence agencies for purposes connected with any of their functions, for example, the Security Service would be able to be provided with information for purposes connected with the protection of national security, the support of law enforcement agencies in the prevention and detection of serious crime and to safeguard the economic well-being of the United Kingdom, which are their statutory functions as set out in the Security Services Act 1989.

122.     Subsection (3) provides a power to provide information not specified within paragraph 9 of Schedule 1 (Records of provision of information) to a chief officer of police, for national security, the prevention or detection of crime or for other purposes as may be specified by order. Paragraph 9 of Schedule 1 records the provision of information from a person's Register entry as opposed to the "static" information held on the Register, such as place and date of birth.

123.     A similar power is provided in subsection (4) for the provision of information without consent to the Commissioners of Inland Revenue or the Commissioners of Customs and Excise, for national security, the prevention and detection of crime, national insurance contributions and the other purposes connected with the Commissioners set out in Subsection (4) except information falling within paragraph 9 of Schedule 1.

124.     Where information does not fall within paragraph 9 of Schedule 1, provision of that information is permitted if it is made to a prescribed government department or a Northern Ireland department in order to carry out prescribed functions of that department or of the Minister in charge of that department. (subsection (5)). This allows for the provision of information without consent to other parts of government or Northern Ireland departments, e.g. to the Department for Work and Pensions for investigation of social security fraud or to the Department for Social Development in Northern Ireland in connection with social security benefits or national insurance numbers. Regulations allowing information to be provided under this power will be subject to the negative resolution procedure.

125.     Subsection (6) sets out for what purposes information may be provided without consent to a designated documents authority that issues documents designated under clause 4.

126.     Subsection (7) defines terms used in clause 19 in particular exactly who is covered by the term "chief officer of police".

127.     "Crime" is defined in clause 43(1) with reference to the Regulation of Investigatory Powers Act 2000 which defines "crime" as "conduct which constitutes one or more criminal offences or is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom would constitute one or more criminal offences".

128.     "Detection" is defined in clause 43(1) and (9) with reference to the Regulation of Investigatory Powers Act which defines "detecting crime" as including "(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed".

129.     Subsection (8) ensures that this clause does not restrict any powers existing elsewhere to disclose information.

Clause 20: Further uses connected with the prevention and detection of crime

130.     This clause sets out other circumstances in which information from the Register may be provided without consent of the registered person. Subsection (1) provides a power for this provision so long as it is authorised in this clause and clause 23 is complied with.

131.     Subsection (2) sets out that where information is provided without consent for any of the purposes specified in sections 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (which include provisions for disclosing information for the purposes of criminal investigations or proceedings overseas), it is authorised under this clause but only subject to clause 23.

132.     Subsection (3) allows the Secretary of State to prohibit the provision of information without consent for use in oversees proceedings (under the Anti-terrorism, Crime and Security Act 2001) as specified in section 18 of that Act (which allows the Secretary of State to give a direction that would prohibit the provision of information that could be used for the purposes of any oversees proceedings that would otherwise occur under section 17 of that Act e.g. the Secretary of State might do this if he considered that it would be more appropriate for these proceedings to be conducted in a court of the United Kingdom.

133.     Provision of information falling within paragraph 9 of Schedule 1, which is the record of information provided from the Register, is authorised if it is to the persons listed in clause 19(2) to (6) and is for purposes connected with preventing or detecting serious crime or if it is authorised under clause 20(2) ) for use in overseas criminal investigations or proceedings, and is concerned with the prevention and detection of serious crime. This allows a higher threshold to apply where the information being disclosed relates to an individual's use of an ID card rather than static information about name, address etc.

134.     "Serious crime" is defined in clause 43 with reference to the Regulation of Investigatory Powers Act which defines serious crime as a crime that "(a) involves the use of violence, results in substantial financial gain or is conducted by a large number of persons in pursuit of a common purpose, or (b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".

 
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Prepared: 29 November 2004