Surveillance: Citizens and the State - Constitution Committee Contents

Supplementary memorandum by Dr C N M Pounder


  I have decided to distil my long written evidence to identify some important instances where Parliament and public did not have the chance to scrutinise the use of the National Identity Register as a population register when the ID Card Bill was before Parliament. Because Ministers are to formally respond to my evidence, I thought it useful to identify the sections of my evidence which I think are important. I have no objection to this additional note being sent to relevant officials.

(a)  What was the nature of the debate concerning section 1(4)(e)?

  Section 1(4)(e) of the ID Card Act 2006 permits use of the National Identity Register and authorises interference with private and family live in terms of "the purpose of securing the efficient and effective provision of public services". At the time of the Bill, there were two interpretations of the effect of this provision:

    (1) A limited interpretation that permitted the use of the NIR in support of the ID Card Scheme objectives. For instance, by using the NIR to check the validity of the ID Card and thereby secure efficient and effective delivery because only those who are entitled to public services receive them, or by case-by-case access to the database to resolve specific problems.

    (2) A wider interpretation that additionally permitted using the National Identity Register (NIR) as a population register to secure efficient public service delivery by allowing general data sharing of contact data from the Register (this is the CIP functionality).

  In his oral evidence, the Minister said I was wrong and claimed that both interpretations (1) and (2) are on the face of the Bill and apparent to any reader. This completely misses the point. My main point is that interpretation (1) was the only one put to Parliament and the public and during the public consultation about the "Entitlement/ID Card". For example, the Minister, Andy Burnham, in the Third Reading debate on 18 October 2005 stated:

    "Clause 1, with which we are preoccupied, sets out the purpose of the national identity register, and I would tell the right hon Member for Suffolk, Coastal (Mr Gummer) that two very clear statutory purposes for the Bill are given in that clause: first, to provide a convenient method by which individuals can prove who they are—he recognised that he might indeed welcome that—and, secondly, to provide a secure and reliable method by which public bodies and others can ascertain identification and thereby better serve the public interest".

  By contrast, interpretation (2) was never debated even though it was a central plank of Government policy and Ministers and their senior officials knew this. Somehow, the public and Parliament were denied the information that would have lead to the opportunity of an informed debate on the extensive use of the NIR as a population register as part of the ID Card framework.

(b)  What was the "hidden" Citizen Information Project (CIP) functionality?

  It will also be useful to summarise the extent of the "hidden" functionality associated with interpretation (2) as described in the CIP minutes of October 2004 to July 2005. These show that the Home Office, prior to any Parliamentary scrutiny of the ID Card Act 2006, had:

    —  "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"); and

    —  "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".

  Additionally, in October 2004, Ministers were informed that adding CIP functionality to the NIR improved the Value for Money of the ID Card scheme, and the minutes identified CIP functionality as forming about one fifth of ID Card's business case. It also notes that Ministers were informed that to realise this saving, registration on the NIR (ie and by implication the ID Card) must be compulsory.

  Finally, I should comment that currently the functionality associated with interpretation (2) is very much on the back burner as Government focuses on delivery of the security aspects of the ID Card. However, the delays in implementing the CIP functionality does not provide excuse for not informing Parliament about the Government's intentions to use the NIR as a population register.

(c)  What are the issues that raise questions that need an answer?

  There now follows a dozen issues: I think issues (2), (4), (7), (8) and (11) are the most important.

  (1)  Legal advice was obtained in April 2003 and published in April 2006. The Government should explain why this legal advice which covered the use of a population register (as incorporated into the NIR in October 2004) could not be shared with Parliament when the ID Card Bill was being scrutinised, yet it could be published within 20 days of the ID Card Act being enacted.

  (2)  The public consultations held in 2004 said the NIR would not be used as a population register. "Legislation on Identity Cards" (CM 6178), for example, described the population register under a Chapter entitled "Wider issues not included in the draft legislation" (my emphasis). The Government should identify the public or Parliamentary statements that explained to the public, whilst the ID Card Bill was before Parliament, that a population register was now included as part of the ID Card Scheme.

  (3)  Paragraph 3.20 of CM 6178 also promised the use of the NIR as a population register would "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". The Government need to explain why, in the context of the use of the NIR as a population register, this commitment to public consultation around "public acceptability" or "safeguards" did not occur.

  (4)  A letter dated 10 September 2004 stated that the merging of CIP into the NIR would "strengthen the VFM case for ID Cards". The minutes in October 2004 report that: "Home Secretary to write to cabinet colleagues ... including the purpose of supporting greater public sector efficiency". As the efficiency savings account for 20%, the Government need to explain why it is omitted from ANY Regulatory Impact Assessment (published on either side of the General Election), or in information or briefings given to Select and Standing Committees.

  (5)  The letter dated 10 September 2004 also points out that recommends that "the NIR should become the national adult population register long term (but only if ID Cards become compulsory)". The Government needs to explain why, in all the debates about compulsory ID Cards, the argument that "the ID Card must be compulsory in order to realise CIP efficiency benefits of 20% of the cost of the ID Card Scheme" was not put forward.

  (6)  Although this is not a "governmental issue", Ministers need to explain why the wider use of the NIR was not 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.

  (7)  Ministers need to explain why in July 2005, a draft "Written Ministerial Statement" informing Parliament about the wider use of the NIR as a population register was delayed until 18 April 2006 (after the ID Card Bill had become law), when both the Draft Written Statement and the actual Written Statement are not significantly different.

  (8)  On 30 June 2005 draft recommendations from civil servants stated: "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". Paragraph 17 added "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'". Ministers need to explain why the civil servants most closely involved in the CIP project formed this view, if it is obvious that the population register functionality is self evidently on the face of the Bill.

  (9)  When the ID Card Bill Committee stage (Commons) Mr McNulty responded to a question: "Did he say that the local authority registrar of deaths would automatically access the database to inform it of the death of a citizen?". In column 78, the Minister answered: "The registrar would not access the database, but inform in normal fashion—once the system was up and running—about deaths that needed to be added to particular records. The registrar would not have access to the database". By contrast the CIP minutes say the Home Office have "the responsibility for ensuring from around 2021 basic contact data held by stakeholders can be up-loaded to the NIR". The Minister needs to explain this apparent discrepancy (given that the Registrar of Births, Deaths and Marriages are now part of the same department rolling out the ID Card).

  (10)  In Column 346, examples of wider use of the NIR consistent with section 1(4) were given. These were: "A provision could be made for the Department for Work and Pensions to receive information in connection with its fraud investigations", "the provision might be used is to provide the Department for Constitutional Affairs with information to ensure that fines are issued to the correct person, or to provide information about addresses that might be helpful in tracking down individuals who have not paid fines" and "the measure might be used is to provide information to the Department of Health when a patient who is admitted to hospital cannot identify themselves". In column 363, it was "The fire and ambulance services could also be beneficiaries of access when verifying identity against the register following a major accident". Ministers need to explain why these case-by-case examples of use of the NIR were given preference over widespread use of a population register that would save 20% of the ID Card costs.

  (11)  On 16 January 2006 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. 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. Ministers need to explain why it did not oppose the removal of section 1(4) in terms that its removal would mean that the efficiency gains from wider use of the NIR would be lost.

  (12)  In the final stages of the ID Card Bill, there was a lengthy game of Parliamentary ping-pong over the wording of the ID Card commitment in the Labour Manifesto (which only referred to the security, immigration and law enforcement agenda; see paragraph (6)). A compromise solution was reached which included compulsory registration on the NIR but an option not to obtain an ID Card until 2010. Ministers need to explain why no mention was made that this compromise would also maintain the CIP efficiency savings via the use of the NIR as a population register.

13 July 2008

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