Joint Committee On Human Rights First Report


4 Identity Cards Bill

Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

25 May 2005

HC Bill 49

5th and 8th Reports of Session 2004-05

Introduction

4.1 This Bill, previously introduced in the last Parliament, was re-introduced in the present Parliament on 25 May 2005. Its remaining stages in the House of Commons are scheduled for 18 October. A statement of compatibility with the Convention rights under section 19(1)(a) of the Human Rights Act has been made by the Home Secretary. Explanatory notes have been published in respect of the Bill as reintroduced.[36] We welcome the inclusion in these explanatory notes of an analysis of the human rights compatibility of the Bill,[37] which represents an improvement on the Explanatory Notes to the Bill in the last Parliament.

4.2 The previous Committee reported on the Identity Cards Bill in its sixth and ninth reports of Session 2004-05.[38] Although much of the present Bill is in substantially the same form as the Bill considered in those reports, there have been several amendments, the impact of which we consider below. Since the establishment of the Committee in the present Parliament, we have also received a number of written submissions in respect of the Bill.[39]

The Purpose of the Bill[40]

4.3 The Identity Cards Bill would establish a National Identity Register ("the Register") to be maintained by the Home Office, which is to contain information capable of establishing the identity of individuals,[41] to allow their identity to be verified where necessary in the public interest, including in the interests of national security, the prevention and detection of crime, the enforcement of immigration controls, the prohibition of unauthorised working and the efficient and effective provision of public services.[42] Information to be entered on the Register would include biometric information, details of residence, residential status in the UK, and records of occasions on which information from a person's entry on the Register has been checked by others.[43]

4.4 Every person whose details are entered on the Register would be issued with an Identity Card,[44] which could contain any information recorded about the individual on the Register. The Bill is enabling legislation and would allow either a voluntary ID cards scheme, or a compulsory scheme, with the intention that an initially voluntary scheme would be replace by phased-in compulsory registration.[45] Under a voluntary scheme, the Home Secretary could by order identify "designated documents", such as passports, issue of which would require registration on the National Identity Register.[46]

Human Rights Implications

4.5 A requirement to have or to carry some form of identity card does not of itself raise human rights issues, as has been established by the European Court of Human Rights.[47] Many Council of Europe countries operate identity card schemes, which are generally considered to comply with the ECHR.

4.6 It is the retention and storage of personal information on a database, such as the National Identity Register, and the disclosure of information from it, that engages the ECHR right to respect for private life (Article 8 ECHR).[48] "Personal information", as understood under Article 8, includes any information establishing personal identity, and extends to the systematic storage of identifying information already publicly available.[49] To be permissible, gathering, storage or disclosure of personal information that falls within the protection of Article 8 must be justified under Article 8.2 as in accordance with law; as serving a legitimate aim, and as necessary for and proportionate to that aim. Where the gathering, storage and disclosure of personal information exclusively or disproportionately affects certain groups, it may also engage Article 14 (freedom from discrimination in the protection of the Convention rights) read together with Article 8.

The previous Committee's views

4.7 The previous Committee identified risks that the Bill would intrude unjustifiably on privacy rights protected by Article 8 ECHR in a number of respects, through the retention of personal information on the National Identity Register, and the disclosure of personal information from it. The Committee considered that the intrusion into privacy rights would be greatest under a compulsory scheme, which the Bill envisages will be phased in over time. However it considered that privacy as well as discrimination concerns would arise under a nominally voluntary scheme, as such a scheme would be likely to make registration in effect compulsory for some categories of people.

4.8 In its final report on the Bill, published following correspondence with the Home Secretary, the previous committee retained a number of specific concerns about the human rights compatibility of the Bill. The Committee concluded:

Revisions to the Bill since the previous Committee's reports

4.9 In a number of relatively minor respects, the terms of the present Bill differ from those of the Bill reported on by the previous Committee:[50]

  • there is now an affirmative resolution procedure for orders by the Secretary of State designating documents under clause 4;
  • the power of the Secretary of State to modify by order the age at which persons may be entered on the Register (clause 2(7)) is now subject to an affirmative resolution procedure;
  • the provision of information from the Register under orders of the Secretary of State made under clause 19 of the Bill is made subject to a requirement that the provision of information is necessary in the public interest (clause 19(7));
  • the order making power in clause 22, by which the Secretary of State may authorise the provision of information on an individual to a public authority without the individual's consent is to be exercisable only where necessary in the public interest (clause 22(2)).

4.10 A Government amendment tabled on 11 October 2005 for consideration at report stage in the House of Commons would amend clause 1(5)(g), which includes within the list of "registrable facts" that may be recorded on the Register information about numbers allocated for identification purposes and about documents to which they relate. The amendment would restrict this provision by stipulating that such information should not extend to any sensitive personal data within the meaning of the Data Protection Act 1998, or anything the disclosure of which would tend to reveal such data.

Nature of the Information held on the Register

4.11 We see no reason to depart from the previous Committee's conclusion that the information held on the Register would be personal information falling within the protection of Article 8. The jurisprudence of the ECtHR clearly establishes that this would be the case.[51] We therefore consider that the extent of the National Identity Register, and the use of information held on it, requires careful justification by the government as necessary for, and proportionate to, the statutory aims. In particular, as the previous committee pointed out, the retention of records of checks against the Register under Schedule 1 Paragraph 9 of the Bill is likely to build up a comprehensive picture of an individual's employment, use of public services and private transactions,[52] which over time, would amount to a considerable intrusion on the individual's private life.[53] We welcome the Government amendment tabled to clause 1(5)(g) which would restrict the information retained on the Register under that subsection concerning identification numbers and related documents. We maintain the view of the previous committee that the Bill's provision for the retention of extensive personal information relating to all or large sections of the population may be insufficiently targeted to be justified as proportionate to the statutory aims and may lead to disproportionate interference with Article 8 rights. We draw this to the attention of both Houses.

Designated Documents

4.12 Clause 4 of the Bill allows the Secretary of State by order to designate documents, the issue of which would require entry on the Register.[54] The previous committee noted that a requirement to enter personal details on the Register on application for a document, such as a passport, which had been designated under clause 4 by the Secretary of State, could in effect make registration compulsory for persons for whom the document concerned (such as, for example, a residence permit) was a necessity. Where the nature of the document designated would mean that registration became effectively compulsory for certain people, Article 8 would be likely to be engaged. In assessing the proportionality of the interference with Article 8 rights, it would be relevant to consider whether the document designated bore a clear relation to the statutory aims. In this regard it is not clear that the gathering of personal information of persons applying for a passport, for example, bears any relation to the protection of national security or the prevention of crime or to the other statutory aims listed in clause 1. We note that, since the previous Committee reported on the Bill, the power of the Secretary of State to designate documents has been made subject to an affirmative resolution procedure.[55] We welcome this. We nevertheless maintain the previous committee's conclusion that the designation of documents unrelated to one of the aims of the Bill could give rise to a risk of disproportionate interference with Article 8 rights, and in some cases to a risk of discrimination in breach of Article 14 read in conjunction with Article 8. We draw this to the attention of both Houses.

Information otherwise available to be recorded

4.13 The previous committee drew attention to the potential for intrusion into privacy rights arising from clause 2(4) of the Bill, which allows information about an individual to be entered onto the Register even where that individual has not applied, or been required to apply, for entry onto the Register. The Home Office suggested to the previous committee that information entered under clause 2(4) would include information relating to failed asylum seekers or others about to be deported or individuals from outside the UK who are issued with a biometric visa on entry. Information on persons who were either not entitled to register, or had not yet done so, could also be recorded without their consent for national security reasons. The Home Office stated that, in accordance with the Data Protection Act, individuals will wherever practicable be notified that information is to be recorded on the National Identity Register. Whilst this is a welcome assurance, the previous committee considered that privacy concerns remained, given the wide scope for information to be gathered and stored under clause 2(4) without consent, and given the likelihood that in some cases it would not be practicable to inform an individual that their details had been recorded. We maintain this concern, and draw this matter to the attention of both Houses.

Compulsory Registration

4.14 The previous committee identified a risk of discriminatory intrusion into private life, in breach of Article 8 read with Article 14 under a phased-in compulsory scheme where registration would be required for particular groups, such as non-nationals. It also considered that a scheme which required only certain persons (for example, persons below a certain age) to register could be insufficiently tailored to the statutory purpose to amount to a proportionate interference with Article 8 rights. We retain the view of the previous committee that phased-in compulsory registration risks disproportionate and discriminatory interference with Article 8 rights. In our view, the imposition of compulsory registration on particular groups under clause 6 should be subject to the condition that such compulsory registration is necessary for one of the statutory purposes. We also note that concerns have been expressed that compulsory registration for foreign nationals may lead to British citizens from visible minority ethnicities being subject to more frequent demands to produce an ID card or allow checks against the Register.[56]

Checks on the Register

4.15 Under a compulsory registration scheme, regulations may make access to public services or benefits conditional on production of an ID card,[57] and verification of an individual's identity against information held on the National Identity Register.[58] The Home Secretary assured the previous committee that information provided under clause 17 would be limited under Regulations to that which was necessary in the particular case and that, under clause 17(3) and 41(6), a system of accreditation would be established for organisations which could be provided with information from the Register. Whilst welcoming these assurances, the previous Committee concluded that these safeguards should be set out on the face of the Bill, rather than left to regulations. We retain the previous Committee's view that further safeguards should be set out in clause 17, and draw this to the attention of both Houses. As the previous committee repeatedly stressed, where legislation intrudes on privacy rights protected by Article 8 ECHR, it is important that safeguards be contained on the face of primary legislation, which is subject to much fuller parliamentary scrutiny than secondary legislation.[59] We maintain the view that reliance on public authorities to implement wide, human rights intrusive statutory powers in accordance with the Convention rights does not provide sufficient assurance to Parliament that the legislation is human rights compliant.[60]

4.16 Checks against the Register may also be a condition of private transactions. Under clause 18, where compulsory registration applies, then an individual may be required to produce an ID card, or to give consent to a check against his or her entry on the Register, as a condition of doing any thing in relation to that person.[61] Such a condition may be imposed by any person, either public or private. A check against the person's entry in the Register, under clause 14, may only be made with consent; however, as the previous Committee noted, this consent may sometimes be essentially involuntary or notional, where access to essential services, or entry into necessary contracts, may be dependent on consent to a check against the Register. The Secretary of State assured the previous Committee that a system of authorisation would be established for organisations to which information is to be provided.[62] However the previous committee considered that further safeguards should be introduced on the face of the Bill to ensure Article 8 protection, making clear that checks should only be authorised where relevant to a legitimate aim and necessary in the particular case. We maintain this recommendation, and draw it to the attention of both Houses.

Disclosure of Information

4.17 In its Eighth Report, the previous Committee considered that the breadth of the powers of disclosure under the Bill risked disproportionate interference with Article 8. It noted that disclosures of information under the Bill were not subject to any requirement that there be an assessment of relevance, necessity and proportionality prior to disclosure. It concluded that, given the importance of the privacy interests at stake, a requirement that information should be disclosed only to the extent necessary for the statutory purposes should be contained on the face of the Bill.

4.18 The current Bill now requires that regulations under clause 22 may only allow disclosure of information where such disclosure is necessary in the public interest for one of the statutory purposes. A similar requirement has also been applied to orders made under clause 19. We note, however, that the majority of disclosures of information under the Bill are not made subject to the same criterion of necessity. For example, under clause 19(2)(a), information (including Schedule 1 Paragraph 9 information) may be provided to the Director-General of the Security Service "for purposes connected with the carrying out of any of that Service's functions", a threshold considerably lower than necessity, and appearing to leave open the possibility of access to the records of large sections of the population. Similar provision is made in relation to the Chief of the Secret Intelligence Service,[63] the Director of GCHQ,[64] and the Director General of the Serious Organised Crime Agency.[65]

4.19 Neither does the criterion of necessity for statutory purposes apply:

  • to disclosure of information (excluding Schedule 1 Paragraph 9 information) to a chief officer of police under clause 19 (3)(a) or 19(3)(b), or to the Commissioners for Revenue and Customs under clause 19(4) (a)-(e);
  • to disclosure of information (excluding Schedule 1 Paragraph 9 information) to a government department "for purposes connected with the carrying out of any prescribed functions of that department or of a Minister in charge of it" (clause 19(5));
  • to disclosure of information to a designated documents authority for purposes connected with its functions (clause 19(6));
  • to disclosure under clause 20(4) which allows Schedule 1 Paragraph 9 information to be disclosed from the Register to persons other than UK public authorities, in relation to actual or potential proceedings, either in the UK or abroad, that relate to serious crime.

4.20 We welcome the amendments to clauses 19 and clause 22 imposing requirements of necessity in the public interest, as providing important safeguards in relation to some disclosures of information from the National Identity Register. We consider however that there remains a risk that a number of provisions of the Bill could result in disclosure of information in a way that disproportionately interferes with private life in violation of Article 8. We draw this to the attention of both Houses.

Civil Penalties

4.21 The question of the human rights compatibility of the civil penalties provisions in the Bill, which was not dealt with in the reports of the previous committee on the Bill, has also been raised in evidence from NO2ID.[66]

4.22 The Bill provides that a civil penalty of up to £2500 may be imposed against a person subject to compulsory registration who fails to register his or her details on the National Identity Register[67] or fails to take required steps to verify information about him or herself entered on the Register by for example, allowing photographs or fingerprints to be taken either on entry onto the Register.[68] Failure to provide verifying information where this is required subsequent to registration can result in a civil penalty of up to £1500.[69] Repeated failures to register when required to do so will result in repeated civil penalties of up to £2500.[70]

4.23 Civil penalties of up to £1000 may also be imposed on persons subject to compulsory registration who do not acquire a valid ID card within a specified period[71] or, on application for an ID card, fail to provide verifying information to ensure a complete, up to date and accurate entry on the Register.[72]

4.24 Any individual to whom an ID card has been issued (under either a voluntary or a compulsory scheme) may be liable to civil penalties of up to £1000 for failure to notify the Secretary of State of any error in his or her record on the Register any relevant change of circumstances (such as a change of name or address) within a prescribed period, or failure to provide verifying information in relation to any such error or change.[73] Civil penalties of up to £1000 may also be imposed on anyone who fails to notify the Secretary of State that their ID card has been lost, stolen, damaged, tampered with or destroyed[74] or anyone who is in possession of an ID card without lawful authority or has failed to meet a request of the Secretary of State to surrender the card.[75]

4.25 Civil penalties are imposed by the Secretary of State.[76] A person given notice that a civil penalty is to be imposed may object to the penalty on grounds that he or she is not liable to it; that in the circumstances the penalty is unreasonable; or that the amount of the penalty is too high.[77] The Secretary of State in response may cancel, reduce, increase or confirm the penalty.[78] An appeal to the county court by way of rehearing may be made from any penalty order on grounds of liability, unreasonableness or the amount of the penalty.[79]

4.26 The classification of these penalties as civil penalties in the Bill does not determine their classification as civil or criminal under Article 6 ECHR, which protects the right to a fair hearing both in the determination of civil rights and obligations, and in the determination of a criminal charge, but provides for additional due process guarantees where a criminal charge is determined, including the presumption of innocence under Article 6.2 and criminal procedural rights under Article 6.3. The term "criminal charge" in Article 6 has an autonomous meaning.[80] Whether proceedings are to be considered civil or criminal under Article 6 will depend on three primary factors: the classification of the proceedings in domestic law; the nature of the offence; and the severity of the penalty that may be imposed.[81] The second and third elements of the test carry more weight than the first.

4.27 The nature of the offence is more likely to be criminal where the rule giving rise to the offence is of a generally binding character, rather than applicable only to a defined group;[82] where the aim of the law is punitive or deterrent;[83] where conviction is dependent on a finding of culpability;[84] and where proceedings are instituted by a public body with general powers of enforcement.[85]

4.28 The civil penalties imposed under the Bill are likely to be considered to have a punitive and deterrent in seeking to enforce compliance with the ID cards scheme. Although they do not depend on findings of culpability, they are imposed by the Secretary of State. The range of their application would for the most part depend on the extent of application of a compulsory registration scheme, but universal application of these penalties would be a possibility under the Bill. The levels of the penalties are high, particularly since they are likely to apply to members of the general public to whom sums of £1000 or £2500 may be substantial. Although these are maximum figures, the Article 6 jurisprudence makes clear that it is the level of severity of the potential penalty that may be imposed, rather than the penalty actually imposed in a particular case, which is determinative of whether there is a criminal charge.[86] A substantial penalty, with a punitive and deterrent purpose, may be sufficient to render the penalty criminal, and attract the criminal procedural protection of Article 6.

4.29 In our view, given the levels of potential penalties and their punitive and deterrent purpose, there is a risk that the civil penalties under the Bill would be seen as criminal in nature and therefore as attracting the protection of Article 6.2 and Article 6.3. There is nothing on the face of the Bill which would prevent the procedures for implementing civil penalties from complying with the criminal standards of due process established by Article 6. Whilst we do not consider the Bill's civil penalties regime is likely to be contrary to the Convention rights, in our view its compliance with Article 6 would best be assured if the procedures for imposition of penalties under the Bill aim to comply with Article 6 criminal due process guarantees.


36   Bill 9-EN Back

37   ibid., at paras. 241-251 Back

38   Fifth Report of Session 2004-05, Identity Cards Bill, HL Paper 35, HC 283 and Eighth Report of Session 2004-05, Scrutiny: Fourth Progress Report, HL Paper 60, HC 388 Back

39   See Appendix 3(a) and Appendix 3(b) Back

40   A more detailed analysis of the practical and human rights implications of the Bill is set out in the previous Committee's Fifth and Eighth Reports of Session 2004-05, op cit. Back

41   Clause 1(1) Back

42   Clause 1(4) Back

43   Clause 1(5), Clause 3 and Schedule 1 Back

44   Clause 8 Back

45   EN, para. 44 Back

46   Clause 4 and Clause 5(2) Back

47   Reyntjens v Belgium App No 16810/90, where the Identity Card which the applicant was required to hold and carry contained only his name, sex, date and place of birth, current address, and the name of his spouse Back

48   Leander v Sweden (1987) 9 EHRR 433  Back

49   Amann v Switzerland (2000) 30 EHRR 843; Rotaru v Romania (2000) 8 BHRC 43 Back

50   There are also some minor changes to aspects of the Bill which do not raise human rights issues: in particular the Bill now allows some further scope for review by the National Identity Scheme Commissioner (clause 25(4)) by narrowing the grounds on which the Secretary of State may prohibit the Commissioner from publishing a report, to national security or the prevention or detection of crime (where previously they extended to the discharge of the functions of any public authority, or anything contrary to the public interest.) Back

51   See paragraph 4.6 above Back

52   Including, for example, records of access to healthcare or mental healthcare services, records of checks by employers or prospective employers, records of financial transactions. Back

53   We also note the additional concern expressed by NO2ID, in their written evidence to us, that, over time, data checks on the Register against information held on private or public service databases could result in a relatively accessible and comprehensive record of information held about an individual across all of the databases involved, creating a "much larger, much less secure, patchily regulated, metadatabase". Back

54   Clause 4 and Clause 5(2) Back

55   Clause 4(3) Back

56   Legal Opinion of Ramby de Mello of Kings Bench Walk supplied to the Joint Council for the Welfare of Immigrants (not printed) Back

57   Clause 15 Back

58   Clause 17 Back

59   Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161, HC 537, para.109-111; Fifth Report of Session 2004-05, op cit.; Eighth Report of Session 2004-05, op cit.; Nineteenth Report of Session 2004-05, The Work of the Committee in the 2001-2005 Parliament, HL Paper 112, HC 552 Back

60   Nineteenth Report of Session 2004-05, op cit., para. 82 Back

61   Clause 18(2)(c) Back

62   Under Clauses 14(6) and 41(6) Back

63   Clause 19(2)(b) Back

64   Clause 19(2)(c) Back

65   Clause 19(2)(d) Back

66   Appendix 3(b) Back

67   Clause 6(4)(a) Back

68   Clause 6(4)(b) Back

69   Clause 6(5) Back

70   Clause 6(6) Back

71   Clause 9(5)(a) Back

72   Clause 9(5)(b) Back

73   Clause 12 Back

74   Clause 13(6)(a) Back

75   Under Clause 13(4) Back

76   Clause 33 Back

77   Clause 34(1) Back

78   Clause 34(3) Back

79   Clause 35 Back

80   Engel v Netherlands (1976) 1 EHRR 647 Back

81   ibid Back

82   Bendenoun v France (1994) 18 EHRR 54 Back

83   ibid Back

84   Benham v UK (1996) 22 EHRR 293 Back

85   ibid Back

86   Engel v Netherlands, op cit. Back


 
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