Memorandum by Dr C N M Pounder, Editor
of Data Protection and Privacy Practice
INTRODUCTION
1. This evidence is limited to exploring
two of the issues identified in the Committee's press release
associated with the launch of its investigation: "To what
extent are the provisions of the Data Protection Act 1998 sufficient
in safeguarding constitutional rights in relation to the collection
and use of surveillance or personal data?"; and "Is
there a need for any additional constitutional protection of citizens
in relation to the collection and use of surveillance material
and personal data? If so, what form might such protection take?".
THE NEED
FOR A
NEW KIND
OF PARLIAMENTARY
SCRUTINY?
2. The current mechanism of Parliamentary
scrutiny has resulted in the following problems:
(a) Approval of widely drawn powers[1]
which in the context of surveillance exacerbates the risk of function
creep or the use of powers by a future Government in a different
context. For example, 30-year-old, wide-ranging powers are used
to justify vast tracts of data sharing or data access[2]
by the Inland Revenue. It is therefore arguable that it is unsafe
to leave broad powers on the statute book and that approval of
certain powers should be refreshed by Parliament (eg every 10
years). The Information Commissioner could be given the obligation
to recommend to Parliament which powers should be refreshed.
(b) The Government is in a unique position as
it can enact legislation or use existing powers to modify the
impact of all the Data Protection Principles in order to meet
its processing objectives, and in data protection terms, this
ability can degrade the protection afforded by the most Principles.[3]
So when Ministers claim that "the Data Protection Act applies"
the claim can be disingenuous,[4]
if Ministers can subsequently use powers to modify the impact
of the Principles.
(c) Parliament does not receive the information
it needs to scrutinise legislation in the field of Human Rights.[5]
This problem is especially acute in the field of national security[6]
and DNA profiling.[7]
(d) Parliamentary procedures are not responsive
to the increasing number of international commitments and treaties
which require transfers of personal data from the UK to other
countries.[8]
The European Parliament has little power in respect of decisions
made at the Council of Ministers. Often decisions are imposed
on the UK Parliament on the grounds that the UK has to sign up
to an international commitment.[9]
(e) Parliament has not been given any background
to the reasons why the European Commission think the UK's Data
Protection Act 1998 is deficient; nor has Parliament explored
these issues, yet Government often claim that processing of personal
data will be protected by the Data Protection Act.[10]
SCRUTINY OF
SECONDARY LEGISLATION
3. Parliamentary procedures with respect
to secondary legislation can lead to problems in the way scrutiny
is effected, and this can be illustrated by the letter the Home
Secretary wrote to the Joint Committee on Human Rights in relation
to the ID Card scheme.[11]
The Home Secretary claimed that if the detailed implementation
of powers by Statutory Instrument (SI) breached the Human Rights
Convention, then these SIs could be struck out by the Courts using
its powers under the Human Rights Act. It follows that all human
rights issues can be considered by Government when the instrument
is drafted and not when the powers are being obtained.
4. There are several problems raised by
this approach:
(a) Government can use the "powers could
be struck-out" argument to ignore any criticism in Select
Committee Reports which relate to wide ranging powers.[12]
(b) scrutiny of primary legislation by Parliament
when granting the powers can be limited because of the timetabling
procedures can be used by Government to limit debate on important
topics.
(c) the secondary legislation associated with
the use of powers is not subject to line by line scrutiny or much
debate.
(d) Ministers can expect the use of their powers
to be approved by Parliament and it is a very rare occurrence
that an SI is defeated or withdrawn;[13]
there are about 2,500 Statutory Instruments (SI) per year and,
unless the SI is technically defective, most are not challenged.
(e) Pre-legislative scrutiny by Parliament is
effectively replaced by post-legislative scrutiny by the Courts.
If a Court were to strike out a Ministerial order, (eg as happened
in the field of terrorism), it would bring with it the prospect
of further clashes between the Government and the Courts and thereby
risk of politicising the judiciary.
(f) scrutiny becomes the preserve of those rich
enough (or poor enough in the case of legal aid) to take human
rights cases through the Courts in an attempt to strike out statutory
instruments. This legal tussle is also an unequal struggle—the
average citizen is pitted against a Government which has access
to a bottomless public purse and teams of its own lawyers, if
need be.
(g) If secondary legislation were to be struck
out by the courts, it is possible to envisage circumstances where
Ministers would just draft another alternative instrument circumventing
any legal problem. The result could be that any legal challenge
would need to start again at square one.[14]
5. The JCHR has already commented on the
problems identified above in its 19th Report. This Report recommended
that Government should publish, with each Bill, a Human Rights
Memorandum[15]
which justified how any proposed Bill was compatible with obligations
under Human Rights legislation.
6. The Government has not accepted the above
recommendation.[16]
It is difficult to see how Parliament can scrutinise effectively
without the above information, and I suspect that many members
of the public would be surprised to lean that Parliament does
not have access to such information.
WHY PRIVACY
IS AT
RISK?
7. The Data Protection Act does not protect
privacy to the extent imagined. I have detailed these arguments
elsewhere[17]
but I summarise the main points below.
(a) Data sharing policies have the effect of
merging Government Departments that share personal data into a
single data controller, whereas the Data Protection Act assumes
an array of separate data controllers. This change arises because
data sharing statutory gateways allow personal data collected
for one purpose by one Department to be used for other purposes
under the control of different Departments. In data protection
terms, this especially degrades the protection afforded by the
Second Principle (purpose limitation).
(b) Legislation often defines widely drawn purposes
(eg the purpose of "the efficient and effective delivery
of public services" as defined in the ID Card Act). This
degrades the protection of those Principles which are usually
interpreted assuming a narrowly drawn "purpose" of the
processing.[18]
(c) Retention policies (eg DNA database, communications
data, retention of ID Card data) enhance the surveillance potential
of the data and raise questions of trust.[19]
If Government is delivering joined-up services, the risk is that
mistrust of one part of Government activities is likely to also
become joined-up and extend to all Government services.
(d) Government Ministers are often responsible
for policies which require interference with private and family
life, or have oversight or responsible for the organisations which
undertake such interference. A conflict of interest arises as
these Ministers, at the same time as being accountable for this
interference, establish the procedures which protect private life
from such interference.
(e) Whereas government services are becoming
joined-up, the protection afforded by the regulators who operate
in the area of law enforcement and national security are becoming
increasingly disjointed.[20]
(f) The Information Commissioner, when he raises
privacy issues which need to be resolved, is seen by Government
(and is often treated as such) as part of the opposition to the
policy. The result is that privacy concerns form part of the political
debate about the policy (ie whether personal data should be processed)
and often are not fully addressed in the implementation of policy
(ie how to process personal data).[21]
(g) The Information Commissioner is not a powerful
regulator. The Commissioner cannot audit compliance with the Data
Protection Act without permission; the Commissioner cannot "name
and shame" transgressors following an assessment without
permission; the Commissioner cannot fine data controllers that
breach a data protection principle.[22]
(h) Data retention policies are likely to be
subject to function creep. The reason is that retained data are
stored on a systems that costs £millions and there will be
pressure to demonstrate value for money (eg by using the data
for other purposes). That is why the NIR started life as a security
system and is now a public administration, identity management
and security system.
(i) Data retention policies require the public
to trust the authorities performing the interference. The public
has to trust that any use of retained data is limited to justified
purposes approved by Parliament. The public have to trust that
all staff who have access to the data are fully trained not bend
the rules. The public has to trust that procedures which authorise
interference are followed scrupulously. The public have to trust
the politicians not change the law or use powers to permit function
creep. All this trusting is one directional—from the public.
(j) The merger of security and privacy on the
European Commission model is not the solution as this risks making
privacy subservient to the security objectives.
OVERCOMING A
STRUCTURAL PROBLEM
8. I think a major problem lies the fact
that the public body or Minister responsible for policies/procedures
that require interference with private and family life can also
establish the policies/procedures which protect the public from
over-zealous interference. The Home Secretary, for instance, produces
Codes of Practice with respect to interference and safeguards
in relation to policing, data retention, surveillance, immigration
and national security matters. A recent example is the Serious
Crime Bill where the Audit Commission are given powers to extend
its data matching responsibilities (ie interference) and produce
a Code of Practice which offers protection. As a matter of general
principle the responsibility to interfere should be separated[23]
or distanced from the responsibility to identify safeguards. As
will be seen, such a separation could give Parliament an active
role in determining public policy with respect to privacy versus
security.
9. For example, suppose a Minister had to
draft a Code of Practice for the processing of personal data in
circumstances where the Commissioner had to approve the Code of
Practice before the processing could commence. This means that
the Commissioner would be able to withhold approval on grounds,
for example, that the Code breached a Data Protection Principle
or would be in breach of Article 8 of the Human Rights Act. You
could have procedures where the Commissioner's view of the law
could be tested, as of now, via a Tribunal system which could
lead, via an appeals process, to the Courts.
10. Obviously, if there were to be a disagreement
over a Code of Practice, there would be a period of negotiation
where by the Secretary of State and Commissioner would try to
agree. If such negotiated agreement occurred, then all well and
good—the Code of Practice comes into operation. If no agreement
was possible, the Secretary of State could ultimately override
the Commissioner's objections by exercising powers that need an
affirmative resolution before the provisions of a contested Code
of Practice could come into effect.
11. The affirmative resolution requirement
would mean that any disagreement would be brought before Parliament
for a decision on the use of powers by a Minister, and before
Parliament makes the decision, it can be fully informed as to
the nature of the problem (eg take evidence from the Commissioner
and Minister etc). However, at the end of the day, it is Parliament
that is defining, publicly, where the balance between interference
and privacy should arise—and not the body/Minister who is
responsible for the interference.
12. There is also a need for a mechanism
to allow a Code of Practice to be changed by the Commissioner
after it has come into effect (eg where changes are needed because
the practical effect of the Code has become apparent). There again,
in the case of unresolved disagreement, powers, needing affirmative
resolution of both Houses of Parliament could be made available
to the Secretary of State. If the powers are used so that the
SoS comes to Parliament for a decision. Again, it is Parliament
having a role in defining the boundaries of social policy with
respect to security versus privacy—rather the Secretary
of State taking these decisions in isolation.
13. However, as soon as you have a mechanism
which allows the Commissioner to change Codes of Practice, then
it is easy to graft on a mechanism that allows data subjects/data
controllers to press for changes to a Code of Practice. For example,
data subjects can argue for a change in the Code of Practice because
it is defective, whereas data controllers can argue for changes
which reflect new processing circumstances. This kind of mechanism
directly engages both groups of stakeholders in a data protection
Code which effects them - namely, data subjects and data controllers.
Codes of Practice become dynamic and responsive.
CONSTITUTIONAL ISSUES
ARISING FROM
A LACK
OF SCRUTINY
14. The Appendix to this evidence illuminates
a final constitutional issue; it arises when, for whatever reason,
Government does not want something to be scrutinised. The "something"
in this case relates to the Identity Card Scheme and the decision
to use the National Identity Register (NIR) as a population register
(the NIR is the database associated with the Scheme). The way
that this decision was reached, in my view, raises questions as
to whether Parliament is in a position to scrutinise any legislation
effectively.
15. For instance, is it "constitutional"
for the Government to use of the NIR as a population register:
(a) when the two public consultations on the
ID Card specifically excluded the use of the NIR for this general
public administration purpose.[24]
(b) when the Government promised a further public
consultation as it was necessary "to explore the issues around
public acceptability of the proposal"[25]
(to establish a population register).
(c) when the Government's responses to several
Parliamentary Committees (eg to the Home Affairs Select Committee
in October 2004) and to Parliament do not fully reflect the decisions
that had been taken.[26]
16. In general, officials (and one assumes
Ministers) knew before the General Election of 2005, that the
intention was to use the NIR for a general public administration
purpose. This fact could have featured as part of the General
Election debate (and could have received an electoral mandate
for this part of the ID Card program). As it was known that the
use of the NIR for a general public administration purpose represented
20% of the business case for the ID Card scheme, should this fact
have appeared in the ID Card Bill's Regulatory Impact Assessment
laid before Parliament? Should a Ministerial statement informing
Parliament of the change of use of the ID Card scheme been delayed
for nine months until after Parliamentary scrutiny of the ID Card
Bill was complete?[27]
Should one of the several Parliamentary opportunities presented
to Ministers to announce important changes to the ID Card scheme
been taken?[28]
17. If the politics of accountability, scrutiny
and debate over public policy cannot be channelled through a Parliamentary
process on a subject as mundane as "efficient public administration",
how can Parliament assume it has properly scrutinised any other
governmental policy? Given that the next Prime Minister has already
signalled his intention to grant Parliament more powers of scrutiny,
my hope is that the evidence presented in the Appendix plays a
part in these new constitutional arrangements.
18. For convenience, I have added to the
Appendix, commentary which relates to the Committee's two Reports
into the ID Card Bill on 17 March 2005 and 12 October 2005.[29]
My own view is that if the Constitution Committee had been aware
that the decision had been taken to use the NIR as a general public-sector
information resource then I suspect these Reports might have been
worded differently.
19. Finally, there is wide-spread concern
that Parliament is no longer the focus of political and policy
debate. Perhaps the evidence in the Appendix goes a long way to
illustrate one reason why this is the case.
May 2007
APPENDIX 1
"APPENDIX: TIMELINE OF THE DECISION
TO USE THE NIR AS A POPULATION REGISTER
INTRODUCTION
A1. When I gave oral evidence before the
Home Affairs Select Committee in its inquiry into the draft ID
Card Bill, I made the remark that a comprehensive public administration
function should not be "piggy-backed" onto the National
Identity Register (NIR), the name for the database associated
with the ID Card system, without a thorough public debate as to
the consequences.[30]
The evidence I now lay before the Committee (in this Appendix)
concerns how these plans were made without effective scrutiny
by Parliament and contrary to a promise of a further round of
public consultation.
A2. For example, months before Constitution
Committee's Reports into the ID Card Bill (eg in September 2004),
the Home Secretary knew that the ID Card had to be compulsory
to realise the public service efficiency savings if the NIR was
also to serve as a population register (the diagram on the next
page[31]
was produced by officials in July 2004). I am sure that if the
Committee, concerned as it was about the relationship between
the state and individual, was aware of this development, then
it would have featured in the text of its reports. I am also confident
that the Committee would have expected Ministers to refer to this
development in their submissions to the Committee. However, for
some reason the Committee (and Parliament) was not informed of
this incorporation until the ID Card Act had been passed into
law—even though this incorporation had been established
as Government policy before the ID Card Bill had been printed
in July 2005.
A population register
A3. The essential idea behind a population
register is that all public authorities should be able to exchange
(ie update and download) basic personal details via a central
repository. By doing so, the system creates connections between
diverse databases involved in such exchanges. There are obvious
efficiency savings to be made when such data sharing is undertaken
(eg the population register negates the need for a national census).
However the risks are also apparent if the population register
is associated with an audit trail which possesses an ability to
enhance the link between public sector sources of information
associated with each citizen (eg tax, social security, health,
police, education)[32]
and which is intended to extend to private sector information
(eg opening a bank account, hire of a car).
A4. The decision to widen the use of the
NIR to include a population register fundamentally changes the
surveillance role of the NIR. No longer is the purpose of the
NIR limited to law enforcement and security where a reason to
interfere with private and family life can be justified in terms
of security, crime or immigration. Because of section 1(4) of
the ID Card Act 2006 refers to "the purpose of securing the
efficient and effective provision of public services", the
efficiency of rubbish or council tax collection could become a
legitimate reason for interference.
A5. The security implications are also different—basic
details from the NIR are potentially accessible to hundreds of
thousands of public servants in any public authority. The civil
penalty of not to keep the address details on the NIR could be
viewed as a civil penalty not to update any public authority record
(eg such authorities could report those who fail to update address
records on the NIR). Who should run such a system also becomes
an issue for legitimate debate—should it be the Home Office
with its emphasis on security and crime, or the Office of National
Statistics (ONS) which has a public administration ethos and is
trusted by the public with respect to the Census? It is important
to note that all these questions (and others) raise valid subjects
of concern which could have (and should have) been debated when
the ID Card Bill was before Parliament and that the ONS had identified
about thirty issues of this nature.[33]
A6. The basis of this analysis in this Appendix
has been published in Data Protection and Privacy Practice
(July 2006) and provided to the Committee in a form which
it has been updated and fully cross referenced. That updating
has unearthed further information which has not been published.
2002 and 2004—The public consultations deny
wide use of ID Card database
A7. The Consultation Document launched by
David Blunkett in April 2002 posed an interesting question: "As
an entitlement card would need to be underpinned by a database
of all UK residents, an issue for consideration is whether this
database should be a national population register ... or a new
self standing database".[34]
A8. The answer came in the subsequent document
"Legislation on Identity Cards" (CM 6178) published
in April 2004. Under a Chapter entitled "Wider issues not
included in the draft legislation" (my emphasis), it stated
that "The National Identity Register and a population register
are separate but complementary proposals and they serve different
purposes" but the Government was "open to the possibility
of including provisions relating to the creation and operation
of a separate population register within the identity cards legislation"
(Paragraph 3.21).
A9. Paragraph 3.20 of CM 6178 also promised
that further legislation would be needed to establish a population
register; it stated that further work would be undertaken and,
that further developments "will also include public consultation
to explore the issues around public acceptability of the proposal"
so that any new "legislation would also introduce concrete
safeguards for the public".
A10. In summary, the public was informed
that the NIR was to support security matters—there were
overlaps with a population register but they were separate databases
requiring separate legislation, and that access to the NIR by
law enforcement agencies would be strictly limited.[35]
In relation to a population register, a further public consultation
was promised "to explore the issues around public acceptability
of the proposal".[36]
April 2003—Legal advice and the CIP
A11. Between the two public consultations,
and prior to commencement of the Citizen Information Project (CIP),
legal advice was taken ("Final Report, Annex 8: Legal issues").[37]
This advice stated that if the population register contained limited
contact details and if data sharing of these details were to be
legitimised by legislation, then such legislation was unlikely
to breach Article 8 of the Human Rights Act. The advice judged
that any "interference by a public authority" in terms
of Article 8(2) would very likely fall within a state's "margin
of appreciation". This conclusion effectively told Government
that it could lawfully draft data sharing powers, which permitted
basic contact details about individuals to be shared across the
public sector, without consent of the citizen. The data protection
elements related to the First and Second Principles would also
be resolved, as these cover essentially the same ground as Article
8.
A12. The general benefits of the CIP database
were listed in this legal advice. These were described as: "ensuring
that public bodies have accurate information about citizens";
"financial savings to the public purse"; "a reduction
of the potential for fraud"; "speedier location of citizen
records"; "reduced occasions when one citizen is confused
with another"; "reduced occasions when communications
between the state and citizen are sent to out-of-date addresses";
"simplified arrangements for citizens to notify changes of
name and address"; and "improved targeting of public
services and formulation of government policy".
A13. The data items listed in the advice
were: "names including name history"; "addresses
including multiple addresses and address history"; "sex";
"place of birth"; "date of birth" and "unique
identifier number". The advice did not consider that the
NIR would become the database for the CIP.
A14. This legal advice was obtained before
the first meeting of CIP in February 2004 (CIP meetings involved
staff from many Government Departments and senior personnel from
the ID Card project were always in attendance). The advice contained
sufficient detail to stimulate a public debate on the CIP if the
Government wanted such a debate.
April 2004—Draft ID Card Bill published
A15. Clause 1 of the draft ID Card Bill[38]
identified one expansive statutory purpose which enabled information
recorded in the National Identity Register (NIR) "to be disclosed
to persons in cases authorised by or under this Act". Clause
23 of that draft Bill identified a power which allowed the Secretary
to State to authorise disclosures from the NIR, without consent,
for prescribed purposes which were unconnected with terrorism,
national security, crime, taxation, and immigration.
A16. It is clear that these two provisions
were drafted in a sufficiently broad way to provide the legal
framework for the use and disclosure of NIR data for the public
administration purposes which was consistent with the CIP's legal
advice obtained in April 2003. So if the intention was for the
NIR, established by ID Card legislation, to assume CIP functionality,
the Government was clearly in a position to inform the public
and Parliament of this step. For example, during the first half
of 2004, the Home Affairs Select Committee of the House of Commons
was studying the Government's ID Card proposal in detail.
A17. It can be argued that at the text of
the draft Bill studied by the Committee reflected the fact that
the CIP and NIR were seen as separate. In the draft Bill, the
general public sector purposes were "to ensure free public
services are only used by those entitled to them" and "to
enable easier and more convenient access to public service".
These purposes are more limited than the broadly defined "the
efficient and effective delivery of public services" purpose
found in Section 1(4)(e) of the Identity Cards Act 2006.
March to June 2004—CIP is separate from
NIR
A18. There is further evidence which suggests
the two schemes were originally seen as separate. For example,
the CIP Project Definition[39]
prepared for CIP meetings in Spring 2004 identified around 30
policy issues to resolve. These included "Who should run
the live register?" and "establishing trust in the organisation
running the population register". Another document prepared
for the CIP Project Board stated that a stand-alone Population
Register Bill was the preferred option.[40]
A19. Other evidence also supports the view
that the CIP and NIR were seen as separate:
— 29 March 2004[41]
MPs were told "The CIP, the National Identity Register (part
of the Government's proposals for an identity card scheme) and
the NHS data spine are separate but complementary projects".
Although the answer indicated that there could be integration
"in the future" the key information given to Parliament
was they were currently independent.
— 20 May 2004[42]
The CIP minutes of that date recorded a general agreement that
a discussion paper According to these minutes, document CIPPB(04)19
provided "a clearer view of the distinction between CIP and
IDC" (IDC=Identity Card).
— 18 June 2004[43]
The CIP minutes of this date recorded a Home Office official involved
in the ID Card project stating that he thought "the overlap
between CIP and NIR more apparent than real" because "CIP
functionality does not overlap with the identity card core proposition"
(eg the NIR is not designed for "pushing change of contact
details out to the public sector" or "holding multiple
addresses to support joined up Government"). The minutes
also reported that "Project Board members preferred the stand-alone
option for CIP" and that the Home Office were worried about
"scope creep weighing down the identity cards programme".
— June 2004 A second round of public
consultation reassured the public that "The register will
not be open for general access" (CM 6178; "Legislation
on ID Cards", paragraph 2.6) and that "The National
Identity Register and a population register are separate but complementary
proposals and they serve different purposes" (paragraph 3.21).
The diagram following footnote 2 of this submission shows the
extent of CIP functionality.
Using the NIR as a population register was always
a possibility—March 2004
A20. A document made available to CIP personnel
in March 2004[44]
made it clear that "The Home Office has indicated that they
are not averse to including CIP clauses" in an ID Card Bill
because it had "already a slot in the legislative timetable".
However, there were risks of "the Population Register being
closely identified with the ID Card scheme" and that separate
legislation would make it easier "to prohibit police or security
access to the Register". Separate legislation would also
"limit scope-creep" and would "set the Population
Register clearly apart from ID Cards and allow it to be seen as
a benign tool for improving public service". However, the
"Home Office might consider that (separate) CIP legislation,
if contentious, put the ID Cards scheme at risk".
A21. It concluded the decision to use the
NIR for a population register "may become the preferred option
if the Minister makes a decision about CIP in time for CIP powers
to be included in the ID Cards Bill".
10 and 16 September 2004—CIP's population
register should be part of NIR
A22. By the end of the summer these dilemmas
had been resolved in favour of using the NIR as a population register
for general public administration purposes. A letter dated 10
September 2004[45]
was sent from the CIP project board to the Chief Secretary of
the Treasury which stated that the merging of CIP into the NIR
would "strengthen the VFM case for ID Cards". It therefore
recommended that "the Home Secretary[46]
be asked to include improving the efficiency and effectiveness
of public services as a purpose of the Identity Card" and
that "the NIR should become the national adult population
register long term (but only if ID Cards become compulsory)".
A23. The letter also explained that the
broad concept of a CIP had gained acceptance with the focus groups
but when the detail of the CIP project were explored by these
groups "concerns are raised that whether the potential benefits
could justify the cost and that this would lead to linkage of
sensitive personal information across government".
A24. The CIP minutes of 16 September 2004
supported the integration of the NIR and the CIP. These stated
that the "ID Card legislation presents no impediments to
the NIR sharing data with other registers to support their statutory
purpose" and it was recognised that "the CIP position
is now reflected within the ID Card Bill". The minutes also
show that the Home Secretary would know of the change: it stated
"Home Secretary to write to cabinet colleagues in early October
to clear some changes to the IDC Bill. This will include greater
clarity on the statutory purposes of the scheme, including the
purpose of supporting greater public sector efficiency".
24 September 2004—Privacy Impact Assessment
completed
A25. A preliminary Privacy Impact Assessment
(PIA) for the CIP was finalised in September 2004 (published in
"Final Report, Annex 8: Legal issues")[47]
and succinctly identified the benefits of the CIP project as they
were known at this date. Because of the merger of the CIP into
the NIR, these benefits also applied to the ID Card scheme. The
Assessment split the benefits of the CIP into three groups:
— Benefits to the individual: "only
have to notify one government department of a change of address"
and "once the citizen has changed contact details to one
department, their responsibility to notify other departments is
relinquished"; an up to date register will "allow citizens
to receive personalised and targeted communications"; and
improved services "as it is easier for the service provider
to find the files".
— Benefits to the tax payer and society:
"contact details up to date"; facilitate "internet
services"; cost savings through better "tracing individuals",
"reducing fraud"; "ensures every individual fulfils
their obligations to the community" (whatever this means!);
improvements in data sharing.
— Benefits to government: keeping contact
details up to date; less waste of resources when tracing individuals;
snapshots of population movements; targeted mailshots to citizens;
better statistical analysis; provides a biographical footprint
(because there is a record of those public bodies which use the
address in delivering services to the individual); and savings
as appointments always have up-to-date details.
A26. Given the Home Affair Select Committee's
interest in the concept of a Privacy Impact Assessment, it is
noted that the senior civil servant from the ID Card project is
recorded in the minutes[48]
as expressing interest in the PIA for the CIP's population register.
End of September 2004—a status summary
A27. By the end of September, in relation
to the use of the NIR for "the purpose of securing the efficient
and effective delivery of public services", the evidence
suggested:
— the CIP and NIR were intended to
be fully integrated and CIP functionality was to be implemented
by the powers Ministers were seeking under the ID Card Bill which
was before Parliament;
— Ministers decided to use the ID Cards
Bill to implement the integration of CIP and NIR;[49]
— that consent of the individual would
not be needed to permit data sharing to achieve CIP benefits (legal
advice; April 2003);
— both public consultations on the
ID Card had reassured the public that there would not be general
access to NIR and that there would be another round of consultation
about a population register;
— the purposes associated with the
CIP which were to be integrated into the NIR were well defined
and detailed; and
— in order to merge the CIP with the
NIR, the ID Card had to be compulsory and Ministers knew this.
(Note: this emphasis is given because I have been unable to find
any Ministerial statement which explained the need for a compulsory
ID Card in terms of implementing CIP functionality).
October 2004—Government replies to the Home
Affairs Committee ID Card Report
A28. However, in its official response,
MPs on the Home Affairs Committee were told that the Government)
was "no longer actively exploring plans to develop a separate
population register but rather will be exploring options to improve
the quality and effectiveness of existing registers".[50]
As the NIR is not an existing register, this statement cannot
refer the NIR which had not yet been created.
A29. The Government also told the Committee
in its official response that it believed that "the NIR has
the longer term potential to fulfil some of the functions envisaged
for the national population register". This statement with
its reference to "potential" is difficult to reconcile
with the definite position as recorded in the minutes taken a
month earlier (16 September 2004) which stated that "ID Card
legislation presents no impediments to the NIR sharing data with
other registers to support their statutory purpose" and that
"the CIP position is now reflected within the ID Card Bill".
A30. The Government's reply did not go into
detail as to the nature of these "longer term" functions,
even though these were set out in the legal advice of April 2003
and in the Privacy Impact Assessment of September 2004. Nor did
the Government reveal that the legal advice stated that consent
of ID card-holders was not needed to permit sharing of contact
details to achieve CIP functionality. Also absent in the Government's
reply was any explanation that powers in the proposed ID Card
legislation were broad enough to legitimise data sharing of a
general administration purpose.
A31. It is interesting to note that Recommendation
38 of the Committee's Report had stated that "The Government
must be clear and open about the issues involved and enable informed
parliamentary and public scrutiny of any decisions". The
Government's response to this recommendation was unequivocal:
"The Government agrees this is an important issue".
28 October 2004 (Col 53WS—First written
statement about the CIP)
A32. The Government informed Parliament
of a "feasibility study" which found that a "UK
population register has the potential to generate efficiency benefits"
and that "if ID Cards were to become compulsory, it may be
more cost effective to deliver these benefits (efficiency savings)
through the NIR". The statement also does not reflect the
status of the project as described in September 2004 (eg "the
CIP position is now reflected within the ID Card Bill") and
is very low key. Its use of words such as "feasibility",
"potential", "if" and "may" makes
the statement less definite than the decisions which had been
taken.
A33. There was a promise of a further statement
after June 2005 when a "second stage of project definition"
was completed. This also reinforces the idea that matters have
not yet been determined.
29 November 2004—Regulatory Impact Assessment
published
A34. Home Office Minister, Des Browne MP,
signed a Regulatory Impact Assessment (RIA) which was produced
to provide Parliament with details which related to the impact
of the ID Card Bill. The section of the RIA dealing with "more
efficient and effective delivery of public services"[51]
described the use of the ID Card to achieve savings. It did not
refer to the fact that far more efficiency savings were to be
realised by sharing the personal data in the NIR. The RIA did
not reflect the CIP minutes of 16 September 2004 which noted that
"the CIP position is now reflected within the ID Card Bill".
The RIA did not even illustrate the range of benefits to individuals,
government and society which were specified in the Privacy Impact
Assessment (dated September 2004) or identified in the legal advice
(April 2003).
A35. Similarly, paragraph 26 of the RIA
(dealing with longer term benefits) did not mention the decision
to use of the NIR for public administration as described in earlier
CIP minutes. It tentatively suggested that the National Identity
Registration Number "should the card scheme become compulsory"
could "provide the means to make more fundamental improvements
in the delivery of Government services" but that this step
was "not part of the immediate business justification of
the scheme". In addition, "the ID Cards scheme could
provide a basis for people to notify changes of personal details
such as address, only once", but this is "not currently
costed as part of the functions of the Identity Cards scheme".
(Note: In the letter dated 10 September 2004, the Home Secretary
was told that the merging of CIP into the NIR would "strengthen
the VFM case for ID Cards"; if one assumes that this statement
is based on factual analysis, it is difficult to imagine that
some cost estimates did not exist).
9 March 2005—Publication of Constitution
Committee's First Report
A36. The Report makes no reference to the
public administration purpose and this is presumably because Committee
Members were unaware of the decisions that had been taken. However,
one passage of the Report lays emphasis on the role of the ONS
and the Census Act. It is possible that since the ONS were responsible
for the idea of a population register, that the Committee would
have strengthened the argument for an independent registrar (modelled
on the Census arrangements)—and that the NIR should not
be under the control of the Secretary of State.
18 March to April 2005—CIP benefits form
fifth of ID Card business case
A37. The CIP minutes of 18 March 2005 identified
"substantial CIP related benefits (address sharing benefits)
within HO ID Cards outline business case, amounting to around
one fifth of the total". Progress had been such that there
was to be a "phased reduction of the CIP team". The
Home Office representative stated that she "was able to re-assure
the board that there were no anticipated issues with the Identity
Cards Bill or the efficiency and effectiveness clause that is
relevant to CIP".
A38. In addition, the CIP role was being
augmented by the e-government agenda. The representative from
the Treasury stated "Working with the Identity Cards programme
to establish how Identity Cards could be used to help meet e-government
needs" for example "Scoping the issues of e-authentication
with service owners and Chief Executives" and "Development
of a strategic approach to identity in government including a
review of business processes and provision of a risk management
framework for e-service delivery in a business sense". The
Crosby Review (expected in the summer) could further widen the
use of the NIR.
A39. The decision to have wider use of the
NIR was in time to have been captured by Labour's manifesto for
the 2005 General Election—especially as 20% of the ID Card's
business case was being justified on CIP's functionality. Labour's
Manifesto itself stated that ID Cards would be established to
assist the authorities in purposes connected with crime, terrorism,
illegal employment and immigration. There was no mention of the
public administration purpose or data sharing of contact details
based on the NIR, or that registration on the NIR had to be compulsory
(with the implication that the ID Card had to be compulsory) to
achieve 20% of the benefits of the ID Card scheme.
A40. The CIP minutes of 15 April 2005 stated
that "up to 30 tactical data sharing opportunities (for the
NIR) have been identified". These 30 data sharing opportunities
have not yet been made public (unlike the 17 benefits which were
identified in September 2004 but only made public in April 2006).
25 May 2005—Updated Regulatory Impact Assessment
published
A41. After the General Election, on 25 May,
the ID Card Bill was re-introduced into Parliament; the Bill specified
the "the purpose of securing the efficient and effective
provision of public services" and provided wide ranging disclosure
powers (in line with the legal advice of April 2003). Home Office
Minister (Andy McNulty MP) signed an "updated version"
of the Bill's Regulatory Impact Assessment (RIA) to inform subsequent
Parliamentary debate on the Bill.
A42. The section on "more efficient
and effective delivery of public services" was almost identical
with the RIA published 29 November 2004. Although the RIA was
promoted as "an updated version" it still did not reflect
the use of the NIR to achieve the functionality described in the
CIP minutes and background papers (eg minutes of 24 September
2004) and the "30 tactical data sharing opportunities"
which had been identified in April 2005 were not mentioned in
the RIA. It is also curious that an RIA, which contains many figures
which relate to the ID Card, did not state that 20% of the ID
Card's business case depended on the merger of CIP into the NIR,
or that compulsory entry of contact personal data into the NIR
would be needed to implement CIP functionality.
24 June 2005—Final meeting of the CIP project—evidence
from the minutes
A43. The final CIP minutes of 24 June 2005
showed that contact details from the NIR would be widely shared
(upload and download) and that the Home Office had assumed responsibility
for implementing CIP functionality. The minutes stated that the
Home Office would have:
— "the responsibility for delivering
an adult population register that enables basic contact data held
on NIR to be downloaded to other public sector stakeholders"
(The "Treasury and Cabinet Office should ensure that NIR
delivers CIP functionality as planned");
— "the responsibility for ensuring
from around 2021 basic contact data held by stakeholders can be
up-loaded to the NIR"; and
— to "design the take-up profile
of the NIR to be such that population statistics can be realised
for the 2021 census".
A44. The CIP's final report which was prepared
at this time (but not published until the ID Card Act 2006 had
received Royal Assent) stated that secondary legislation (which
is in the ID Card Bill) will allow "public services to be
provided with NIR data without the need to obtain specific citizen
consent".[52]
The CIP final report also provided examples of how NIR data could
be used (which presumably are a sub-set of the "30 tactical
data sharing opportunities" identified on 15 April 2005).
A45. The opportunities identified in the
Report included:
— "DWP targeting the 300,000 eligible
citizens not currently claiming pensions";
— Taxation authorities "contacting
employees required to complete self assessment";
— Managing passport application peaks
by getting customers to apply early;
— "DfES tracing children at risk
via their guardians' addresses;
— "Local councils collecting debt
from citizens who have moved to another authority";
— "NHS targeting specific citizen
groups for screening campaigns"; and
— "reducing the overall administrative
burden on bereaved people".
A46. As the ID Card Bill was commencing
its Committee stage in Parliament, there was no barrier to allowing
debate to include the new responsibilities of the Home Office
as described above.
A47. On 13 June 2005, the Parliamentary
Research Department of the House of Commons Library published
its 58 page research document into the ID Card Bill. These research
documents were produced to inform MPs impartially about the issues—as
with the RIA, this research document into ID Cards did not contain
details of the decision to merge the CIP into NIR functionality
as described above.
30 June 2005—CIP staff wants Parliament
to be informed
A48. A draft list of recommendations were
prepared by civil servants for the CIP Project Board ("Submission
to Ministers—draft")[53]
to consider to send to ministers; the list showed that CIP officials
were very aware of the privacy and constitutional issues.
A49. Paragraph 2 of the draft recommendations
began: "Urgent—Home Office believe there would be advantages
in making an announcement before Parliament rises on 21 July so
that the Government's intention to use the ID Cards register in
this way is confirmed while the ID Cards Bill is still being debated".
The reason for this is explained in paragraph 17: "Home Office
believe there would be advantages in making an announcement before
Parliament rises on 21 July" as "that would confirm
the Government's intention to use the ID Cards register in this
way while the ID Cards Bill is still being debated and so avoid
subsequent criticism, say from the Information Commissioner, that
the ID Cards register is subject to `function creep'".
13 July 2005—Ministers left to decide about
informing Parliament
A50. The Project Board sent different recommendations
to Ministers ("Submissions to Ministers") and the explicit
30 June text mentioned above was dropped in favour of a simple
statement: "it is in the public domain that CIP is due to
report to Ministers this summer but no date has been given for
a Ministerial response". However, a draft letter prepared
for Chief Secretary of the Treasury to distribute to Cabinet colleagues
sought responses by 7 September 2005 as "I intend to make
an announcement after Parliament returns" (in October 2005).
A51. A draft "Written Ministerial Statement"
to Parliament was included as Annex B of this package. This contained
sufficient detail to stimulate an informed debate about the merger
of the CIP with the NIR if the statement was issued. In the event,
no statement was made to Parliament in October 2005; however the
draft Statement delivered in Annex B is not significantly different
from the Statement which eventually appeared in 18 April 2006
after the ID Card Bill had become law.
A52. The Chief Secretary of the Treasury
at this time was Des Browne MP who had also signed the Regulatory
Impact Assessment on 29 November 2004, which related to an earlier
version of the ID Card Bill. It is not known whether his detailed
knowledge of the ID Card scheme played an influential part in
the decision not to inform Parliament.
19 July 2005 -ID Card Bill Committee stage (Commons)
A53. In Committee, the Home Office Minister
avoided reference to the fact that powers in the Bill were needed
to ensure integration of CIP's wide data sharing functionality
into the NIR (eg as identified by 24 September 2004). Instead,
explanations were provided in narrow terms; for example "In
fraud investigations it would be sensible, from its point of view,
for it (a local authority benefits inspectorate) to have access
to the register" or that "The fire and ambulance services
could also be beneficiaries of access when verifying identity
against the register following a major accident".[54]
20 July 2005—Response to written question,
column 1783W
A54. The following written question illuminates
what was to be the "obscure or deny line" adopted by
Government with respect to its comments on the use of the NIR
for public administration purposes (until after the ID Cards Act
received Royal Assent in March 2006).
Harry Cohen: To ask the Secretary of State for
the Home Department if he will introduce an amendment to modify
the Identity Card Bill so that personal information from the national
register associated with the identity card cannot be used by any
public authority for the purpose of the efficient and effective
delivery of public services without the consent of the identity
card holder; and if he will make a statement. [13169]
Andy Burnham: The Government will not introduce
such an amendment. The Bill as drafted only allows information
to be used without a person's consent by specified public authorities
named on the face of the Bill, or others subsequently approved
by Parliament. These arrangements will be subject to independent
oversight.
5 and 18 October 2005 (Third Reading debate)
A55. There were two further Parliamentary
opportunities for Ministers to refer to the decision to use the
NIR as a basis for the CIP functionality. On 5 October,[55]
MPs were told that "Direct access to information held on
the National Identity Register by anyone outside those responsible
for administering the scheme will not be possible, only requests
for information can be made by third parties. In the vast majority
of cases, verification of information on the Register will only
be possible with the person's consent". During the Third
Reading debate on the Bill, on 18 October, the Home Secretary[56]
(Charles Clarke) reinforced this message in the House of Commons:
"What the Bill allows is for information to be provided from
the register either with the consent of the individual or without
that consent in strictly limited circumstances in accordance with
the law of the land".
A56. It is a challenge to reconcile these
two statements, and the answer to Mr Cohen's PQ, with the letter
sent to the Home Secretary in September 2004 or the 24 June 2005
minutes which envisaged that, without the need for consent of
the individual concerned, "basic contact data held on NIR
to be downloaded to other public sector stakeholders" or
for "basic contact data held by stakeholders can be up-loaded
to the NIR".
24 October 2005—Publication of Constitution
Committee's Second Report
A57. This Report essentially repeats the
First Report, but includes an exchange of correspondence in July
2005 with the Minister. In that correspondence, Baroness Scotland
states:
"Government departments or public authorities
may be provided with information from the Register without consent
but only if prescribed in regulations approved by Parliament.
So it will always be clear which organisations can be provided
with data in this way. The Bill also allows regulations to set
rules as to how information can be provided in these circumstances,
again this will be an open, transparent process".
A58. It is difficult to see how the above
tentative text conveys the intend of Government or the firm decisions
that had been taken (eg as illustrated in the minutes of the final
meeting of the CIP since September 2004). For example, the paragraph
not clearly represent the fact that "the responsibility for
delivering an adult population register that enables basic contact
data held on NIR to be downloaded to other public sector stakeholders"
(without consent) had been incorporated into Government plans
for the ID Card scheme.
24 October 2005—Joint Committee on Human
Rights
A59. The Joint Committee on Human Rights
(JCHR) published a report which questioned the access to NIR data
via wide ranging powers in the ID Card legislation.[57]
It reported that "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". These comments
reflect Recommendation 60 of the Home Affairs Select Committee
Report into Identity Cards which stated that "It is unacceptable
that basic questions about the degree of access to the NIR should
be left to secondary legislation".
A60. Both these comments were targeted at
the kind of disclosures that were the subject of the legal advice
dated April 2003 and were eventually published in April 2006.
It is curious that although the Government saw no problem in publishing
this legal advice in April 2006, the advice was not made available
to inform the JCHR's scrutiny of the ID Card Bill in October 2005—some
six months earlier (or indeed the Home Affairs Select Committee).
9 November 2005—The Delegated Powers and
Regulatory Reform Committee
A61. The House of Lords Delegated Powers
and Regulatory Reform Committee, in its Fifth Report[58]
on the Identity Cards Bill, followed other Select Committees and
expressed concern at the wide ranging powers in the Bill. In their
evidence to the Committee,[59]
Ministers did not explain the need for these powers so that the
NIR can possess CIP data sharing functionality. Instead they explained
that these wide data sharing powers were needed to cope with the
exceptional or obscure emergency situation:
104 ... "The more obvious recipients of
information from the Register are dealt with explicitly in the
preceding clauses, but it is regarded as essential to have a reserve
power to use in the public interest if it should be necessary.
For example, it is conceivable that the power could be used to
specify public authorities that are not Government departments
such as the emergency services or local authorities for specified
purposes".
A62. Note the use of the phrase "it
is conceivable"—far more reaching decisions had been
already been conceived months earlier (eg see 24 June 2005).
16 January 2006, Lords Committee Stage—no
explanation of CIP functionality
A63. Baroness Anelay of St Johns successfully
moved an amendment which replaced the words "securing the
efficient and effective provision of public services" with
"preventing illegal or fraudulent access to public services".
This amendment removed the legal basis for the integration of
CIP with the NIR (eg as decided in September 2004).
A64. In her attempt to defeat the amendment
in the Lords, the Minister did not take the opportunity to expound
the virtues of data sharing or explain that 20% of the business
case for the ID Card depended on the merger of the CIP with NIR.
Instead, the Minister explained the phrase "securing the
efficient and effective provision of public services" in
terms of the use of the Card whereas in practice, most of the
efficiency gains of the CIP will depend on the use of the database.
"We should not limit the use of identity
cards in helping to deliver better public services. It is not
just a question of combating fraudulent use of public services;
it is also about helping to transform those services. We believe
that the public will want the introduction of identity cards to
be used as a way of helping public services to deliver quicker
and better services. Why should we have to keep filling in different
forms with details of our name and address? If production of an
identity card when seeking access to a public service can confirm
our identity quickly and easily, surely we should be aiming to
provide that. If producing an identity card enables address details
to be confirmed, that will help both the public service and the
applicant for that service". (16 January 2006: Column 478)
A65. The amendment was overturned by the
House of Commons (13 February 2006). There was no Commons debate
on the matter because of a guillotine motion, used by the Government,
limited debate on Lords' Amendments. This fact alone, in itself,
raises important issues of Parliamentary scrutiny.
March 2006—a game of Parliamentary ping-pong
A66. The House of Lords and Commons disagreed
over the interpretation of Labour's manifesto which promised "We
will introduce ID cards, including biometric data like fingerprints,
backed up by a national register and rolling out initially on
a voluntary basis as people renew their passports". The House
of Lords said that this meant that people should be able to choose
whether to obtain an ID Card with the passport; the Government
said that as people volunteered to get a passport, that the ID
Card could be issued to passport applicants. The result was a
dispute and the ID Cards Bill ping-ponged five times between both
Houses of Parliament.
A67. Eventually, a compromise was proposed
by Lord Armstrong, where individuals did not have to have an ID
Card if they applied for a passport before 2010, but their details
would be entered into the NIR. Accepting the amendment, the Home
Secretary told Parliament: "Lord Armstrong's amendment preserves
the integrity of the national identity register. It ensures that
the details of all applicants for designated documents will still
be entered on it. That will mean that they will be afforded the
protection that that will provide from identity theft. It will
also provide the wider benefits to society by ensuring that attempts
by people to establish multiple identities are more easily detected".[60]
A68. The minutes of April 2005 stated that
the CIP formed one-fifth of ID Card's business case so long as
entry of citizen details into the NIR is compulsory. This had
been known for almost a year—however, this reason was not
proffered by the Home Secretary in his explanation for accepting
Lord Armstrong's amendment.
18 April 2006—Government announced NIR and
CIP merger
A69. At the end of March 2006, the ID Card
Bill gained Royal Assent without the merger of the NIR and CIP
projects being raised. On 18 April[61]
an announcement was made to Parliament by means of a written statement
which explained that the CIP project had wound up. The April statement
is not significantly different from the draft sent by the CIP
Board on 13 July 2005—some nine months earlier. There was
a comprehensive disclosure of CIP documents on its website which
explained in detail the new functionality of the NIR.
15 May 2006—Prime Minister promotes "identity
management"
A70. In an open letter, Tony Blair promoted
the widespread public administration use of the NIR database.
He told Home Secretary John Reid[62]
"Eighth, I am keen to maximise the benefits of ID management
(ie all transactions where a declaration of identity is required),
including the introduction of ID cards by 2009. The full range
of activity relating to identity management needs to be co-ordinated
across government to maximise benefits to the citizen. I would
like you to identify a Minister to focus closely on this and the
agenda across Whitehall". Identity management also includes
the e-government agenda.
A71. The minutes of this project also shows
that there are early links to the use of the NIR in relation to
the Government's policy of Identity Management. Transformational
Government and e-Gov initiatives (eg see the minutes of the CIP
project around March and April 2005). The Crosby Review could
add to the use of the NIR in this respect.
October 2006—national identity management
confirms use of NIR on the lines of the CIP
A72. The term "national identity management"
is being used by Government to include the wider use of the NIR
(eg to include a population register as envisaged in the Citizen's
Information Project (CIP)). This can be shown by reference to
the government's first "Section 37 report" on
the likely costs of the UK Identity Cards Scheme (published in
October 2006). Pages 7 and 8 of this report on ID Card costs (at
bottom) reads:
— "Firstly, it (use of the NIR
as a population register) would allow organisations to be more
proactive—people could be contacted before their passport
needs to be renewed; when employees need to fill out self assessment
tax returns; targeting 300,000 citizens who are not claiming state
pensions or those in particular age ranges who are eligible for
health screening; allowing authorities to collect debt from citizens
who have moved to another area; and reducing the overall administrative
burden on bereaved people".
A73. This paragraph published in October
2006 can be compared with the list published on the first page
of the Citizen Information Project's final report given to Ministers
in June 2005.[63]
The opportunities of wider use of the NIR for CIP purposes were
listed as including:
— Managing passport application peaks
by getting customers to apply early;
— Taxation authorities "contacting
employees required to complete self assessment";
— "DWP targeting the 300,000 eligible
citizens not currently claiming pensions";
— "Local councils collecting debt
from citizens who have moved to another authority"; and
— "reducing the overall administrative
burden on bereaved people".
March 2007—NIR to be used as a population
register
A74. According to Home Office Ministers,[64]
as "the National Identity Register is intended eventually
to contain up-to-date identity information for all United Kingdom
residents aged 16 and over. This will include name, age, address,
nationality and biometric information, such as photograph and
fingerprints. The National Identity Register will then be able
to serve as a United Kingdom adult population register".
A75. It is interesting to note that one
of the original Government consultations[65]
stated that legislation would be needed to establish a population
register and that "this stage will also include public consultation
to explore the issues around public acceptability of the proposal".
This promised public consultation has yet to occur and this subject
has, as far as I can assess, could have and should have formed
part of Parliament's scrutiny of the ID Card Act 2006.
1 For example, powers specified in the ID Card Act
2005, Children Act 2004, Anti-Terrorism, Crime and Security Act
2001. Back
2
HMRC often justify taking copies of databases under the Taxes
and Management Act of 1970. Parliament did not discuss this Act
in the context of database access-mainly because the technology
was not developed (eg in 1970, a mainframe computer with 256K
of memory-which filled a large room-was a rarity-now a memory
stick measuring a couple of inches has 10 times as much memory).
My own view is that Parliamentary approval should somehow be refreshed
whenever technical innovation changes the nature of the use of
powers. Back
3
Section 12 of the Children Act 2004, for example, allows Ministers
to enact powers which can apply to the content of personal data
store on a database as well as accuracy, security, retention,
management, disclosure and access. Back
4
A general statement on the lines that "the database will
comply with the Data Protection Act" was given, for example
on 20 April 2006: Column 807W; and 20 July 2005 : Column 1784W
and 16 November 2004 : Column 1430W in relation to ID Cards Act.
Or 1 September 2004 : Column 774W and 2 November 2004: Column
228 for the Children Act 2004. Back
5
19th Report of the Joint Committee on Human Rights (session 2004-05)
calls for a "Human Rights Assessment" to be published. Back
6
Joint Committee On Human Rights, Third Report ("Counter-Terrorism
Policy and Human Rights: Terrorism Bill and related matters"),
Session 2005-06, Written Evidence 156. Back
7
See comments made by the Science and Technology Parliamentary
Select Committee ("Forensic Science on Trial", session
2004-05), around paragraph 75. Back
8
International Treaties or Decisions of the Council of Ministers
are often presented to Parliament as fait accompli and expanded
upon-for example the ICAO agreement to capture two fingerprints
was used in Parliament to justify the capture of all 10 fingerprints
for the purpose of the ID Card. Back
9
The forthcoming third pillar Directive, the data retention arrangements
in the field of telecommunications, the European Commission agreement
on the transfer of PNR data to the USA (when it comes) all provide
examples where scrutiny by the UK Parliament can be limited. Back
10
FOI requests dealing with these details have been denied on the
grounds that release would jeopardise international relations
(Decision Notice FS50110720 on the OIC web-site) and Parliamentary
Questions (28 November 2005 : Column 126W; 20 June 2005 : Column
814W) have not provided any meaningful information. The hearsay
chatter on the grapevine is that the Commission has unease at
the UK's Data Protection Act because: (a) the Court has unfettered
discretion to deny the right of access to personal data; (b) the
powers of the Commissioner are weak; (c) the transfer arrangements
under the 8th Principle are not exactly as the Directive requires;
and (d) the definition of personal data is too narrow. The definition
of Relevant Filing System is seen to be too narrow, but the Commission
recognises that the extent to which manual files are covered is
subject to the discretion of Member States when implementing the
Directive. Back
11
Joint Committee On Human Rights, 8th Report, Session 2004-05,
Appendix 1. Back
12
See recommendations 59 and 60 of the Home Affairs Select Committee
report into ID Cards (session 2004-05) where the powers were described
as "unacceptable", yet they exist in the ID Card Act
2006 in the same form. Back
13
One SI on a privacy matter which was withdrawn was the draft SI
issued by David Blunkett in relation to wide access to Communications
Data (as defined under RIPA). Press reports at the time credited
Mr Blunkett's son (Hugh) for the Home Secretary's change of mind
(see for example, http://news.bbc.co.uk/1/hi/uk_politics/2051117.stm). Back
14
This is the practice with respect to National Security Certificates
signed under section 28 of the Data Protection Act (eg in the
case of Norman Baker MP). Mr Baker won his case, only to be given
a further certificate applying the exemption. Back
15
Session 2004-05, paragraph 81 states that the Government should:
"identify the Convention rights and any other human rights
engaged by the bill, and the specific provisions of the bill which
engage those rights"; "explain the reasons why it is
thought that there is no incompatibility with the right engage;
"where the rights engaged are qualified rights, identify
clearly the pressing social need which is relied on to justify
any interference with those rights"; "assess the likely
impact of the measures on the rights engaged"; "explain
the reasons why it is considered that any interference with those
rights is justified";" cite the evidence that has been
taken into account by the Department in the course of its assessment". Back
16
I was told by the Clerk to the JCHR when I was preparing this
paper that "The Government has not agreed to this recommendation
(in the 19th Report) and is not providing Human Rights Memoranda
in relation to Bills. From the start of this Session it has been
making an effort to meet the spirit of the Committee's recommendation
by improving the quality of treatment of human rights in the Explanatory
Notes which accompany each Bill. The Committee has not yet taken
a view as to whether it considers these efforts meet its requirements". Back
17
Details in Home Affairs Committee, 4th Report, "Identity
Cards", Session 2003-04, Volume II (Ev 169-73 & Ev 276-81). Back
18
For example, if someone says "data item X is relevant to
a housing benefit purpose", the claim can objectively be
tested- is the data item relevant or not relevant to the housing
benefit purpose? However, this kind of test is substantially diminished
if the purpose is broadly defined. In the ID Card Act, for example,
one purpose relates to "the efficient delivery of public
services" which means that to show a breach, the Commissioner
has to establish "inefficiency". Most of the data protection
principles are defined in terms of a purpose which is assumed
to be narrow; the broader the purpose, the narrower the protection
afforded by the Principle. Back
19
There are examples of trust being lost. For example, parents who
object to the police retaining DNA of their children who have
been mistakenly arrested, parents who object to their children's
details being retained on a child at risk register when there
is no risk, and patients who object to the holding of limited
medical details centrally on the NHS spine. Back
20
Oversight of the Intelligence Services (except interception practices)
is carried out by the Intelligence Services Commissioner. Oversight
of interception is carried out by the Interception of Communications
Commissioner. The Office of Surveillance Commissioners is responsible
for oversight of property interference under Part III of the Police
Act, as well as surveillance and the use of Covert Human Intelligence
Sources by all organisations bound by the Regulation of Investigatory
Powers Act (RIPA) (except the Intelligence Services). There is
an Information Commissioner, a National Identity Scheme Commissioner,
the Commissioners who deal with Northern Ireland policing/terrorism
and the Police Complaints mechanisms and the various Parliamentary
Ombudsman could also be drawn into the supervision business. Recently
the Financial Services Authority levied a £1 million fine
in a case of inadequate security of personal data held by the
Nationwide Building Society. Back
21
The Information Commissioner's views on the ID Card provides an
example. The Home Secretary said that the Information Commissioner
was "a long-standing opponent of the identity card system"
(28 June 2005: Column 1157). Back
22
Unlike the FSA which recently fined the Nationwide £1 million
for breaches of security of personal data. Back
23
I have developed a mechanism whereby Codes of Practice can be
challenged by stakeholders-this can be made available to the Committee
if it wants it. However, the fundamental point is a separation
of powers-if the Minister has power over interference, he does
not have the main levers of control over the degree of protection
on offer. Back
24
The public consultations (CM 5557&CM 6178) both gave commitments
to use the ID Card and related NIR for limit purposes (eg to crime
and security issue). Back
25
Paragraph 3.20 of CM 6178 ("Legislation on Identity Cards"). Back
26
The Appendix identifies several Parliamentary opportunities presented
to Ministers to announce the change of use of the NIR to support
a public administration purpose; these were not taken. The several
statements made by Ministers to Parliament about the use of personal
data held in the NIR are very difficult to reconcile with the
statements made in minutes of meetings with civil servants made
months earlier than the Ministerial statements. Back
27
See Appendix 1 and the events of 30 June and 13 July 2005. Back
28
A sample of these are referenced in the text in the Appendix.
However, around the time of the First Reading of the ID Card Bill
in June 2005, and to avoid accusations of "function creep",
civil servants advised that a statement should be made to Parliament
concerning the NIR's wider role in general public administration.
A Ministerial Written Statement was prepared but its publication
was delayed until three weeks after the ID Card Act 2006 had passed
through Parliament. Back
29
Select Committee on the Constitution (5th Report, Session 2004-05,
HL 82; 3rd Report, Session 2005-06, HL 44) both on the ID Cards
Bill. Back
30
Q782, Fourth Report of Home Affairs Committee, Identity Cards,
Session 2003-04, Volume II. Back
31
From CIPPB(04)22 (produced July 2004) and in "Engineering
and Technology" (November 2006). Back
32
See Sections 1(5)(i) and 3(4) of the Identity Cards Act 2006 which
shows that any reference to an entry in the NIR will leave such
a footprint in the audit trail. Back
33
CIPPB(04)(02) "Citizen Information Project: project definition
stage-aims and policy issues" dated February 2004 on http://www.gro.gov.uk/cip/Definition/ProjectBoardPapers/index.asp. Back
34
"Entitlement Cards and Identity Fraud", Cm 5557, paragraph
2.40. Back
35
For example paragraph 3.29 of CM 5557 states that "the Government
would want to see a full debate on this point and seek views on
what safeguards there should be. For example, whether access to
the database in these circumstances should be governed by a warrant
applied for on a case-by-case basis". The question posed
of the public was whether law enforcement agencies should have
access to the central register "in closely prescribed circumstances"
such as "national security or very serious crimes". Back
36
Paragraph 3.20 of CM 6178 ("Legislation on Identity Cards"). Back
37
Annex 8 is on http://www.gro.gov.uk/cip/Definition/FinalReportAnnexes/index.asp. Back
38
Published in April 2004 in CM 6178. Back
39
CIPPB(04)(02) "Citizen Information Project: project definition
stage-aims and policy issues" dated February 2004 on http://www.gro.gov.uk/cip/Definition/ProjectBoardPapers/index.asp. Back
40
CIPP(04)12-"Towards a Legal Strategy" on http://www.gro.gov.uk/cip/Definition/ProjectBoardPapers/index.asp. Back
41
Answer to PQ 163155, 29 March 2004. Back
42
From http://www.gro.gov.uk/cip/Definition/ProjectBoardMinutes/index.asp. Back
43
From http://www.gro.gov.uk/cip/Definition/ProjectBoardMinutes/index.asp
(Minutes confusingly posted under the date of 21 July). Back
44
CIPP(04)12-"Towards a Legal Strategy" on http://www.gro.gov.uk/cip/Definition/ProjectBoardPapers/index.asp. Back
45
Citizen Information Project: CIP progress report-10 September
2004 on http://www.gro.gov.uk/cip/Definition/ProjectBoard Papers/index.asp. Back
46
David Blunkett MP was Home Secretary till mid-December 2004, then
from that date, Charles Clarke MP. Back
47
Annex 8 is on http://www.gro.gov.uk/cip/Definition/FinalReportAnnexes/index.asp. Back
48
The minutes of 25 November 2005. Back
49
see CIPPB(04)12-reference 53. Back
50
Paragraph 44 of CM 6359. Back
51
Paragraphs 64-72 of the Assessment. Back
52
Page 17 of the Final Report. Back
53
CIPPB(05)45 dated 21 June 2005. Back
54
19 July, 9th sitting morning, Column 363 (Standing Committee Hansard). Back
55
Hansard, 5 October 2005, Column 2845W. Back
56
Hansard, October 2005 (Column 799). Back
57
Joint Committee On Human Rights (First Report), section 4, session
2005-06. Back
58
Session 2005-06, 10 November. Back
59
Appendix 1 of the above report. Back
60
Hansard, 29 March 2006: Column 1000. Back
61
Hansard, 53WS, 18 April 2006. Back
62
http://www.pm.gov.uk/output/Page9461.asp. Back
63
See 24 June 2005 timeline entry "Final meeting of the CIP
project". Back
64
Answer to Mr Hoban's PQ 127212, 13 March 20. Back
65
"Legislation on Identity Cards: A consultation", paragraph
3.20 (CM 6178). Back
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