Supplementary memorandum by Dr C N M Pounder
WAS THERE SCRUTINY OF SECTION 1(4)(e) OF
THE ID CARD ACT?
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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