Memorandum submitted by Liberty (ID 15)

About Liberty

Liberty (The National Council for Civil Liberties) is one of the UK ’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

Liberty Policy

Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research.

Liberty ’s policy papers are available at

http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml

Introduction

1. Liberty has been opposed to identity cards and the National Identity Register from the moment they were first proposed in 2002. The repeal of the Identity Cards Act 2006 by the Identity Documents Bill is therefore hugely welcome. The Bill repeals ID cards and, most importantly will destroy all information held on the National Identity Register (NIR) within a few short months. Liberty has consistently maintained that ID cards and the NIR were a costly and completely unnecessary intrusion into our personal lives and signalled a dangerous shift in the relationship between the individual and the State. It is hugely significant that one of the new Government’s first steps has been to repeal this divisive scheme and reassert the importance of the human right to privacy. We welcome the Government’s announcement during Second Reading of this Bill that residence permits for foreign nationals are not ‘ID cards for foreign nationals’. It is hugely important to end this divisive language and to refer to residence permits only in the context of immigration control. We urge the new Government to go further and reconsider the amount of information being held on foreign nationals, for how long and under what statutory powers.

Background to ID cards

2. ID cards were first introduced in Britain two days after the outbreak of World War II and remained in force until 1952. They were originally issued for three functions only: conscription, rationing and national security. By 1950 this had mushroomed to 39 different functions and ID cards quickly became the required means for establishing identity.1 The National Registration Act 1952 repealed ID cards as they were found to be divisive and no longer necessary. Proposals to re-introduce ID cards, leading to the Identity Cards Act 2006, were first touted in 2001 and formally proposed by a Government White Paper published in 2002.2 A Bill to establish identity cards and an identity register was first introduced in November 2004. This Bill progressed through the Commons and to Second Reading in the House of Lords but was halted when the General Election was called in early 2005. Following the election, the Identity Cards Bill was re-introduced in May 2005 and after concerted and sustained opposition eventually received Royal Assent on 30 March 2006. The Act was described as ‘enabling’ legislation – setting out a framework of powers with a view to phasing in registration and the issuing of cards over a number of years. Nine substantive sets of Regulations and Orders have been made to implement the scheme.3 Despite the Act being on the statute book for over four years, to date only around 15,000 identity cards under this scheme have been issued.

Why ID cards should be scrapped

3. Liberty has consistently opposed the introduction of ID cards. In 2003, in response to the Government’s consultation, we warned that a national identity card scheme would "fundamentally and unacceptably alter the balance of power between the state and the individual".4 We again reiterated our concerns in evidence given to the Home Affairs Committee later that year and warned that ID cards would only serve to hamper race relations.5 When the draft Identity Cards Bill was published by the Home Office in 2004 we gave a detailed response, noting: "We are asked ‘Why not have an identity card?’ The more pertinent question is ‘what justification is there for a card?’"6 We briefed parliamentarians when the Bill was first introduced into Parliament,7 and again when the Bill was re-introduced following the General Election and eventually passed in 2006.8 Following introduction of the Act the Home Office then began to implement its ‘National Identity Scheme Delivery Plan’ and in 2008 we responded to a consultation setting out how the ID card scheme would operate – reiterating our concerns about the profound privacy implications of the National Identity Register.9 In 2009 the Home Office consulted on a number of proposed Regulations that enabled the start of the ID card roll-out. In our response we pointed to the many difficulties and inconsistencies with the detailed proposals.10

4. In summary, our objections to ID cards and, perhaps more importantly, the National Identity Register, relate to:

· the shift it symbolises in the relationship between the State and the individual – moving away from a society where information is shared only when it is necessary to do so, towards one where it is shared unless there is a reason not to. To say ‘if you have nothing to hide, you have nothing to fear’ is to mistake the crucial difference between hiding criminality and respecting privacy. Unwillingness to share information about ourselves does not imply criminal behaviour, but simply a desire for privacy;

· the damaging impact on personal privacy that would result from the centralised retention of potentially vast amounts of personal information. The fundamental purpose of the legislation was to establish the National Identity Register, with ID cards being a by-product of entry on the Register. The Register was designed to contain information about every person in the UK and be accessible by a wide range of public bodies. We had particular concern over the ability for an Order to be made extending the range of bodies with access and the potential for an audit trail which would reveal every time a person had used the identity card to access services as well as the occasions when their record was accessed by others;

· the detrimental impact of identity cards on race relations. Black and ethnic minority groups are already disproportionately subject to stop and search by the police, and identity cards could have eventually been used as a form of internal immigration control;

· the enormous cost of the scheme, with billions of pounds already having been spent and billions more required;

· the security of the information held on the National Identity Register given recent data loss scandals.

5. In addition to our many concerns about the adverse impact of identity cards and the NIR, most importantly the argument for ID cards has never been made out. When ID cards were originally proposed the argument was that they would help in the fight against terrorism and organised crime. However, these arguments did not hold up to scrutiny. Those responsible for the tragic terrorist attacks on 11 September 2001 held valid identification and the men responsible for the terrorist attacks in Madrid in 2004 actually held ID cards. Prosecuting criminal offences turns mainly on intentions, not identity, and identity fraud mainly takes place online where ID cards would be of no assistance. In fact, having a huge amount of personal information all in one location would be more likely to contribute to the chance of identity fraud than combat it. And of course, it is not difficult to find examples of the production of high-quality fake identity documents. Tellingly the attempted justification for identity cards has, over the years, shifted away from crime and security and towards the potential convenience of ID cards for young people to prove their age. The convenience factor of not having to carry a driver’s license, a student card or a passport to the pub is hardly a compelling argument for the construction of a massive government database containing millions of biometric details and other personal information and costing billions of pounds of public money.

6. For all these reasons and many more we are extremely pleased by the introduction of the Identity Documents Bill. Clauses 1-3 repeal the Identity Cards Act 2006, cancel all existing ID cards within one month of Royal Assent and destroy information held on the NIR within two months of Royal Assent. We are particularly pleased that no time is being lost in dismantling this costly and unnecessary scheme. Clauses 4-10 re-enact sections 25, 26 and 38 of the Identity Cards Act 2006 (with minor drafting changes). Clauses 4-9 relate to possessing false identity documents (such as a passport, driver’s licence etc) and making false identity documents. Clause 10 gives the Secretary of State the power to compel various official or other bodies to share information in order to check passport applications or to help determine whether to withdraw passports. These clauses re-enact relatively non-controversial aspects of the Identity Cards Act 2006 and we have no comment to make in relation to them. All other clauses, and the Schedule, are consequential and transitional amendments that need to be made to erase the ID card scheme from the statute book and we fully support these amendments.

‘ID cards for foreign nationals’

7. Missing from the Identity Documents Bill and the pledge to scrap ID cards is any move to amend provisions regarding what was once called ‘ID cards for foreign nationals’. The UK Borders Act 2007 introduced the power for the Secretary of State to make regulations requiring anyone subject to immigration control to apply for the issue of a ‘biometric immigration document’. The Explanatory Notes to the Act when it was introduced did not give any policy justification for its introduction. However, not long after the introduction of these powers, the language changed from ‘biometric immigration documents’ to that of ‘ID cards for foreign nationals’. In March 2008 the Home Office published the National Identity Scheme Delivery Plan 200811 which set out plans for the roll-out of ID cards. It stated that non-EEA nationals would be the first to be subject to compulsion and that "[f]rom 2008 we shall start to issue the first identity cards in the form of biometric immigration documents to foreign (non-EEA) nationals."12 Later it talked about "delivering the scheme" to non-EEA nationals subject to immigration control and that it was "intended in due course to designate biometric immigration documents under the Identity Cards Act 2006, after which any foreign national applying for such a document will be enrolled on the NIR."13 It is clear that the intention was to roll-out ID cards to non-nationals, appealing to heightened public concerns about immigration and attempting to warm up the public for ID cards for British nationals.

8. During the Second Reading Debates on this Bill the Home Secretary said that "biometric residency permits for foreign nationals" are "completely separate from the identity card scheme" and they would be continuing in their current form. . The Home Secretary later went on to say that these permits were referred to as identity cards for foreign nationals for "purely political reasons" and that no one should "be in any doubt. They are not ID cards".14 We are pleased that the divisive language of ID cards for foreign nationals has been dropped by the new Government. Liberty has consistently said that ID cards should be abolished for everyone in the UK, nationals and non-nationals alike. We do, however, accept that government can legitimately maintain a fair and proportionate system of border control, and as part of that include requirements for residence permits. We are concerned, however, at the amount of information, including biometrics, being held in relation to foreign nationals and the unclear statutory basis for the mass database that will soon hold all fingerprints and other biometric information on foreign nationals requiring residence permits. Below we set out the legal position regarding the taking of biometrics and detail our concerns with the current system.

9. In 2008, after the introduction of the UK Borders Act 2007, a European Council Regulation was passed requiring all non-EEA nationals to hold a card containing certain biometric information.15 The UK voluntarily signed up to this Regulation. The 2008 Regulation replaced a 2003 requirement for visa stickers (or vignettes) for foreign nationals, with the requirement that biometric information be included in a chip in a card. The biometric information required by EU law is a photograph of the holder of the permit and two fingerprints. Because of European law the Home Office has recently stated that ID cards for foreign nationals will not be scrapped as "European law requires non-EU foreign nationals to be provided with biometric residence permits", separate to other ID cards.16

10. Permission to work, study or live in the UK in the form of a visa has long been required from non-EEA nationals. We accept that non-EEA nationals are now required under EU law to hold a residence permit card containing some of their biometric information. However, the residence permit in a card format should be treated, and referred to, in the same way as a visa sticker in a passport. Using the language of ‘ID cards for foreigners’ served only to discriminate and divide. With the scrapping of ID cards under the Identity Card Act 2006 all references to ID cards in the UK should cease, and a requirement to produce a residence permit should remain purely a matter of immigration control in the same way as any other visa.

11. We are also concerned about the amount of information, including significant biometric information, being held on the visa database. Vast amounts of personal information are provided by applicants for visas, including now ten images of their fingerprints. Anyone over the age of six who requires a visa to enter and live in the UK is required to provide this information. We understand that under new rules an entrant to the UK is required to provide biometric information to the British embassy in their home country in order to obtain a visa to enter (which remains a sticker in a passport), and once having entered the UK is then required to apply for a residence permit (which will be issued in a card format and obtain an image of two of the person’s fingerprints). We understand that the biometric information obtained by each embassy is sent to and retained by the Home Office. In July 2009 IBM was awarded a contract to set up the National Biometric Identity Service (NBIS), being a database designed to hold all facial and fingerprint images held by the Home Office. This was originally intended to include all information held on the NIR as well as fingerprints obtained for biometric passports. As these proposals have now been dropped we understand that the new database will continue but will only retain biometric and other personal information in respect of foreign nationals, replacing the current Immigration and Asylum Fingerprint System (IAFS).

12. There is very little direct regulation of the current IAFS or the new NBIS databases other than general principles on data protection. Unlike the NIR there does not seem to be any reference in statute to the creation of this mass database. It seems that the database is the by-product of powers found in immigration legislation which enable biometric and other personal information to be taken when a person requires leave to enter and remain in the UK.17 Ascertaining who has access to the personal information held on the database is very difficult as it is spread across various pieces of immigration legislation and general common law principles. There is also no detail on how long this information is retained for. We understand that if a person becomes a British citizen the information is no longer retained, but otherwise it seems that it may be retained almost indefinitely. We understand that all biometric and personal information on visa applicants is considered to remain of use even after a person has left the UK – as there is a chance that they may return some years later.

13. With new requirements to obtain biometric information from every non-EEA national who intends to stay in the UK for more than six months, the NBIS database will expand enormously. It is essential that the highly personal information retained on the database is kept securely, with access tightly limited, and retained for only so long as is strictly necessary. Liberty believes that if a person has left the UK at the expiry of their visa or residence permit and no application has been made for a new visa, their biometric information should be destroyed. If the person subsequently makes a new application for a visa then biometric information can, and will in any event, be taken anew. There appears to be no valid reason to retain this information after the person has left the UK. In addition, European law requires two fingerprint images to be taken and stored, yet the UK currently takes and retains ten fingerprint images. We do not believe the UK should go further than what is required by European law in this highly sensitive area. We also believe that an urgent review of the requirements of European law in this area is required. Much of what has been agreed to at the European level mirrors the practice in those European countries where ID cards are the norm for citizens and non-citizens alike. As the UK has now finally rejected proposals for ID cards for British nationals we need now to fully consider whether the card system for foreign nationals within the UK is strictly necessary, as the arguments in favour are eerily similar to those in favour of ID cards more generally.

Conclusion

14. Almost ten years after ID cards were first proposed, and billions of pounds later, we are extremely pleased that ID cards and the National Identity Register are finally being laid to rest by the Identity Documents Bill. We urge all parliamentarians concerned about personal privacy, race relations and unnecessary public spending to support this Bill. We are pleased the Government is committed to ending the divisive language of ‘ID cards for foreign nationals’ and now call on it to review the amount of information, including biometrics, being taken and retained on government databases from non-EEA nationals. ID cards and the folly they represent should be destroyed once and for all for everyone in the UK – citizens and non-citizens alike.

July 2010

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[1] In Willcock v Muckle [1951] 2 All ER 367 the High Court observed: “ it is obvious that the police now, as a matter of routine, demand the production of national registration identity cards whenever they stop or interrogate a motorist for whatever cause. Of course, if they are looking for a stolen car or have reason to believe that a particular motorist is engaged in committing a crime, that is one thing, but to demand a national registration identity card from all and sundry, for instance, from a lady who may leave her car outside a shop longer than she should, or some trivial matter of that sort, is wholly unreasonable. This Act was passed for security purposes, and not for the purposes for which, apparently, it is now sought to be used.”

[2] Home Office, Entitlement Cards and Identity Fraud , 2002.

[3] See the Identity Cards Act 2006 (Fees) Regulations 2009 , SI 2009/2805; Identity Cards Act 2006 ( Application and Issue of ID Cards and Notification of Changes ) Regulations 2009 , SI 2009/ 2795 ; Identity Cards Act 2006 ( Prescribed Information ) Regulations 2009 , SI 2009/ 2794 ; Identity Cards Act 2006 ( Provision of Information without Consent ) Regulations 2009 , SI 2009/ 2793 ; Identity Cards Act 2006 ( Provision of Information with Consent ) Regulations 2009 , SI 2009/ 2575 ; Identity Cards Act 2006 ( National Identity Registration Number ) Regulations 2009 , SI 2009/ 2574 ; Identity Cards Act 2006 ( Entitlement to be Registered ) Regulations 2009 , SI 2009/ 2572 ; Identity Cards Act 2006 ( Civil Penalties ) Regulations 2009 , SI  2009/ 2571 ; and Identity Cards Act 2006 ( Information and Code of Practice on Penalties ) Order 2009 , SI 2009/2570.

[4] Liberty ’s Response to the Home Office Consultation ‘Entitlement Cards and Identity Fraud’ , March 2003, available at:

[4] http://www.liberty-human-rights.org.uk/pdfs/policy03/id-cards-mar-2003.pdf

[5] See Liberty ’s evidence to the Home Affairs Committee on the Government’s Identity Card proposals , December 2003, available at:

[5] http://www.liberty-human-rights.org.uk/pdfs/policy03/id-card-evidence-to-home-affairs-committee-dec.PDF

[6] Liberty ’s Response to the Home Office Consultation on the Draft Identity Cards Bill, July   2004, available at: http://www.liberty-human-rights.org.uk/pdfs/policy04/id-card-draft-bill-response.pdf

[7] See Identity Cards Bill, Liberty ’s briefing for Second Reading in the House of Lords, February 2005 , available at: http://www.liberty-human-rights.org.uk/pdfs/policy06/id-card-2nd-reading-lords.pdf

[8] See for example Identity Cards Bill, Liberty’s briefing for Second Reading in the House of Commons , June 2005, available at: http://www.liberty-human-rights.org.uk/pdfs/policy06/id-cards-bill-2nd-reading-commons-0605.pdf and Identity Card Bill: Liberty’s Briefing for Consideration of Lords amendments , February 2006, available at: http://www.liberty-human-rights.org.uk/pdfs/policy06/id-cards-briefing-consideration-of-lords-amend.PDF

[9] Liberty ’s response to the Home Office Document: “National Identity Scheme Delivery Plan 2008” , June 2008, available at:

[9] http://www.liberty-human-rights.org.uk/pdfs/policy08/national-identity-scheme-delivery-plan-2008.pdf

[10] Liberty ’s response to Home Office “Identity Cards Act Secondary Legislation consultation” , February 2009, available at: http://www.liberty-human-rights.org.uk/pdfs/policy-09/liberty-s-response-to-home-office-consultation-ica-secondary-legislation.pdf

[11] Identity & Passport Service 2008, ISBN 978-1-84726-624-8 .

[12] Ibid, Executive Summary, page 7 .

[13] Ibid, p ara 41 .

[14] Commons Hansard , 9 June 2010, columns 346 and 349.

[15] See Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals and the amendments to this by Council Regulation (EC) No 380/2008 of 18 April 2008, which the UK has voluntarily adopted.

[16] See ‘ Cancellation of identity cards: FAQs ’ , Identity and Passport Service website: http://www.ips.gov.uk/cps/rde/xchg/ips_live/hs.xsl/1690.htm

[17] See in particular the Immigration Act 1971 which provides that certain non-nationals require leave to enter and remain in the UK , the Immigration Rules , and the UK Borders Act 2007 which sets out requirements for biometric information to be taken.