Appendix 1: Letter from Rt Hon
Charles Clarke MP, Secretary of State for the Home Department,
re Identity Cards Bill
Thank you for your letter of 26th January with a
number of questions relating to the Identity Cards Bill and its
compatibility with the European Convention on Human Rights.
I will respond to each of your questions in turn,
but before I do it might be helpful if I first make some general
comments as to the status of the legislation and the proposed
identity cards scheme.
First, of the 25 EU member States, all apart from
the UK, Ireland, Denmark and Latvia already have identity card
schemes. Some of these schemes are voluntary and others are compulsory
including schemes where it is both compulsory to have as well
as to carry a card (which goes further than our proposal). Other
EU Member States (including Denmark that does not have an ID card),
have systems of compulsory registration with requirements for
changes of name or address to be notified. Whilst I understand
that we need to look at the United Kingdom scheme on its own merits,
I do not consider that the principle of a compulsory national
registration and identity cards scheme can possibly be in breach
of our obligations under the European Convention on Human Rights
(ECHR).
Secondly, I must stress that the Identity Cards Bill
is enabling legislation. Many of the precise details relating
to the application process, the format of the ID card itself and
the arrangements for the provision of information from the National
Identity Register have yet to be decided. We have therefore not
spelt out all the details on the face of the Bill and many of
these can only be set out later in secondary legislation which
will also have to be compatible with our ECHR obligations. I consider
that all the powers in the Bill are capable of being exercised
compatibly and its human rights compliance has to be judged ultimately
by looking at the Bill and all the orders and regulations made
under it. We will be under a duty, under section 6 of the Human
Rights Act, to act compatibly in making the subordinate legislation
and if we did not do so the courts will have the power to strike
it down.
The identity cards scheme which is planned to start
in 2008 will operate under the enabling legislation contained
in the Bill, together with secondary legislation made under it
and other relevant law—in particular the Data Protection
Act and Human Rights Act. I believe that this will ensure that
the requirements for certainty and proportionality are met.
INFORMATION HELD ON THE REGISTER
Question 1: Why is it considered that the gathering
and storage of each of the registrable facts serves a legitimate
aim, and is a necessary and proportionate interference with Article
8 rights?
It is accepted that the gathering and storage of
information under the Bill may amount to an interference with
Article 8 rights, although this will not always be the case. Much
of the information will not be personal information protected
by Article 8. We consider that any interference there may be will
fall to be justified under Article 8.2, generally as in the interests
of national security, for the prevention of crime or in the interests
of the economic well being of the nation. The Bill sets out clear
statutory purposes for the Bill at Clause I and these include
national security, the prevention of crime and the enforcement
of immigration controls and controls on illegal working (accepted
by your committee in previous reports as aspects of economic well-being).
The information and the purposes for which it is
recorded are set out in great detail in the Bill (Clauses I and
3 and Schedule 1). The information held on the Register is limited
to that regarded as necessary for the functioning of the scheme.
As a general rule, only information of a non-sensitive nature
may be recorded. Most of it is the type of information which will
already be freely available in telephone directories or other
databases. Information such as medical and criminal records cannot
be held on the Register.
Applicants for ID cards will be asked for information
about current principal address (together with current alternative
addresses) and previous addresses (clause 1(5) (b) to (d)). They
will not be asked about every address at which they have ever
lived although, once an ID card has been issued, historic data
of information previously recorded will continue to be held on
the Register (at least for a period), but not as part of the current
record that could be provided with the consent of the ID card
holder under Clause 14.
Current addresses will be required not only to enable
the new agency to contact individuals, but also so it is clearly
recorded on the Register where someone lives if they need subsequently
to provide evidence of address when, for example, seeking access
to a service that applies only to people living in a particular
catchment area. We will use the Order making power at Clause
43 (10) to specify in detail exactly what will be regarded
as a place where a person resides and as a principal place of
residence.
We will also use the Order making power under Clause
12 to set out clearly which particular changes of address
need be notified and the period within which this must be done.
I can offer a reassurance that there will not be a requirement
to update addresses every time someone changes their address for
a short period of time. Our current thinking is that a person
would be required to notify the agency of a change of address
for any place where he or she has lived continuously for 3 months
or more, but we will consider making exceptions in the case of
students or others who have a continuing permanent address. For
students with a term-time address it would be possible, though
not a requirement, for them to update their entry as frequently
as they moved from one place to another if they found that to
be of personal benefit. After moving into a new residence there
will be a reasonable time limit for notifying the agency of the
new address and there will be no requirement for changes to be
notified immediately. We will need to ask people for information
about second or multiple addresses in order to allow for the most
thorough checks before an individual is entered on the Register
and to guard against criminals registering an accommodation address
whilst in reality using another address. In most instances it
is only the principal address where an individual can be contacted
that will be used.
Previous addresses will be required from an ID card
applicant for two reasons. First if there has been a recent change
of address, it will help the individual to ensure that the Register
has both addresses available. It might create problems if the
Register held only the latest address and a service checking identity
has the person recorded as living at their last address. Secondly
previous addresses are needed to enable a background check to
be carried out to ensure a 'gold standard' of identity is entered
into the Register. It is much harder for a fraudster to create
false historic records. We will prescribe the period for which
we will ask for information on previous addresses as provided
at Schedule 1 paragraph 1 (h). Our current thinking is
that we will ask all applicants for details of their addresses
for the past 6 years and only in the most exceptional case
would any earlier details be required.
In a small minority of cases there may be a need
to collect further information from an applicant about earlier
addresses in order to validate their identity. An example would
be the case of a British citizen who has just returned to live
in the UK after 6 years abroad. Collecting information on past
addresses in the UK from such an applicant could be an important
extra piece of information to enable their identity to be validated.
However, for the vast majority of ID card applicants we expect
to ask for no more than details of addresses over the past 6 years.
Additional information cannot be stored in the Register
unless it is consistent with the statutory purposes of the scheme
set out in Clauses 1(3) and (4) and is evidence of a registrable
fact as defined in clause 1(5). The Bill imposes no restrictions
on the rights of the individual to access the information recorded
about him on the Register. Data Protection Act rights apply in
full as confirmed by clause 14(8).
The Register will hold current information
relating to a person's identity and residential status and this
current information can be confirmed with the consent of the individual
under Clause 14. The Register will also hold historic information
relating for example to previous address or previous nationality.
Such information would not be available to be provided under Clause
14 but would be available to the individual concerned under existing
Data Protection Act subject access provisions. In addition historic
information would be available to be provided to intelligence
and security agencies under Clause 19 and to the police in relation
to the prevention and detection of crime.
The Register will hold information about occasions
on which information about a person has been provided from the
Register (clause 1(5)(h) and paragraph 9 of Schedule 1). This
will serve two purposes. First, it will act as an audit trail
of checks made against a person's entry and thus a safeguard against
inappropriate disclosure. It would thus be available if there
were any complaint about how an ID card had been checked against
the Register or about the provision of information from the Register.
This information would be available to the individual concerned
under the Data Protection Act subject access provisions (subject
to any exclusions in that Act). Secondly, in the limited cases
provided for in the Bill, this information could be provided to
law enforcement agencies, for example, to the police in the case
of serious crime.
I believe that this is an entirely proportionate
arrangement and does not make any unwarranted intrusion into an
individual's private life. Information about alternative addresses
and historic information about address, change of name or nationality
could be of great importance in relation to a criminal investigation
and I see no reason why this should not be held on the Register.
ENTRY ON THE REGISTER OF INFORMATION "OTHERWISE
AVAILABLE"
Question 2: Can you clarify the circumstances
in which clause 2(4) will allow for information to be entered
on the Register? Why it is considered that the recording of information
in this way will comply with Article 8 rights?
Clause 2(4) does allow for information to be recorded
on the Register, whether or not an individual has applied to be
or is entitled to be entered in it, if information capable of
being recorded in an entry is otherwise available to be recorded.
One example of how this could be used is to record
failed asylum applicants or those who are about to be deported.
This would ensure that any further attempts to Register would
be flagged. Another example of how this could be used would be
where a person applies for, and is issued with a biometric visa
in anticipation of coming to the UK. In this case it might be
useful to have this information recorded in the Register with
the individual's consent so that if they did exercise their right
to stay longer than three months, the process of getting a residence
permit/ID card would be made easier.
There are also cases where it would be useful, for
national security reasons, to have information recorded on the
Register about an individual who would not be entitled to register
or who had not yet applied for a card.
In all of these (apart from the last) examples the
individual would know that their information has been entered
on the register. The vast majority of people will be aware that
they are recorded on the Register because they will have applied
for and been issued with an ID card. However, the Data Protection
Act contains requirements on notification will also apply to the
ID cards scheme and wherever practicable individuals will be notified
that information is to be recorded on the National Identity Register.
Adding to the Register information which is already
held for the convenience and with the consent of the person concerned
will not in our view constitute an interference with Article 8
rights. Insofar as the information is recorded for the purposes
of the enforcement of immigration controls or national security,
we consider any interference there may be will be justifiable
in accordance with Article 8.2.
DESIGNATED DOCUMENTS
Question 3: How do the aims of the Bill support
a scheme where entry on the Register depends on application for
a designated document unrelated to one of these aims, such as
a passport? How can an interference with Article 8 rights on this
basis can be justified as a proportionate interference with Article
8 rights?
It has always been made clear that the identity cards
scheme is being designed to be a compulsory scheme but will be
introduced in two phases. The first phase will be to link the
issue of ID cards to certain "designated" documents—intended
to include passports for British nationals. The second phase of
the scheme would involve a requirement to register (either applying
generally or on a phased basis) with civil penalties for failure
to do so.
The process of designation will indeed mean that
those people applying for or to renew a designated document will
need to register and obtain an ID card. For a British citizen
the process for obtaining an ID card will be combined with that
for obtaining a passport and will build on the plans for issuing
biometric passports. The information requested will be largely
the same as that which would be required-for issue of a biometric
passport. ID cards will be issued by a new agency based on the
UK Passport Service and working in close conjunction with the
Immigration and Nationality Directorate of the Home Office. I
consider that it is right to phase in the ID card scheme in this
way and that this is a more sensible solution than the alternative
of trying to is introduce a compulsory ID card scheme for all
UK residents simultaneously. I do not consider that the requirement
to obtain an ID card in addition to a passport in itself constitutes
an interference with Article 8 rights.
Question 4: Why is it considered that the scheme
of designated documents can operate in compliance with Article
14 ECHR, read in conjunction with Article 8?
I do not accept that Article 14 prohibits discrimination
"on any grounds". The correct approach to Article 14
is in my view set out in the recent House of Lords judgement in
R (S and Marper) v Chief Constable of South Yorkshire ([20041
UKHL 39) where Lord Steyn said—
"The proscribed grounds in Article 14 cannot
be unlimited, otherwise the wording of Article 14, including things
such as sex, race or colour, would be unnecessary. It would then
preclude discrimination on any ground. That is plainly not the
meaning of Article 14. It is therefore necessary to examine whether
the ground for different treatment in this case amounts to a status
in the sense of a personal characteristic within the meaning of
Article 14".
I do not consider that a phased requirement for compulsion
as between passport and non passport holders can amount to discrimination
on the basis of status. Even if it did, it can be objectively
and reasonably justified as a practical way of phasing in a compulsory
scheme.
ENTRY ON THE REGISTER BY COMPULSION
Question 5: How, in your view, can a phased introduction
of compulsory ID cards, as envisaged by the Bill, be justified
as compatible with Article 8 and Article 14 ECHR?
As stated earlier there are other EU member states
which already have compulsory identity card schemes none of which
have been suggested as being in breach of the ECHR. Clearly it
is not practical or technically feasible to require everyone resident
in the UK to register simultaneously. Apart from applicants for
renewal for UK passports (discussed above), it is possible that
non EEA third country nationals may be required to register before
other residents. Any discrimination in respect of the introduction
of compulsion by nationality would fall to be objectively justified.
In the case of third country nationals, I believe it would be
justifiable to require those subject to limited or conditional
leave to remain to register before the general population. This
would be in the interests of enforcing immigration controls and
prohibitions on working and restricting access to public services
to those entitled to use them. I do not regard exemption from
compulsion for the very elderly to be discriminatory but in any
event, any such policy would in my view be objectively justifiable
in a rolling programme of registration. There may well be a case
for saying that the elderly should not be required to provide
fingerprints or other biometric data or to be photographed etc
if they do not wish to have a travel document.
Clearly the details of any move to compulsion are
not yet settled. Nevertheless, I believe the examples given in
the Explanatory Notes would be lawful exercises of the power.
The Bill provides for full Parliamentary scrutiny of the proposal
for compulsory registration under Clause 6 of the Bill and the
secondary legislation needed to implement compulsory registration
would also have to be compatible with the ECHR obligations.
DISCLOSURE OF INFORMATION, BENEFITS AND PUBLIC
SERVICES
Question 6: Why is it considered that the extent
of disclosure permissible under clause 17 is justified in relation
to Article 8? Will consideration be given to a tighter definition
of information that can be accessed under this provision?
No organisations, including public service providers,
will have "access" to the Register. Access to the Register
itself will be restricted to those employed for that purpose.
The Bill, at clause 17, allows regulations to be made enabling
a person providing a public service to be provided with information
recorded in the Register for the purpose of ascertaining or verifying
registrable facts about an individual. The power is limited to
cases where regulations have been made under clause 15 allowing
or requiring a public service provider to require an identity
check before providing a service. Regulations under clause 15
can only be made in relation to benefit entitlements or free services
in relation to individuals already the subject of compulsory registration.
The information to be provided to a particular public
service provider will depend on the nature of the service. It
is not possible to set out the details of each potential case
on the face of the Bill. Hence the extensive powers in clause
17(2) and (3) and 41(6). The intention is to limit any information
provided to that which is necessary in the particular case, for
example, if a public service needs to confirm an individual's
age or nationality that information could be provided from the
Register. Regulations under clause 17 are subject to affirmative
resolution procedure. The Data Protection Act and section 6 of
the Human Rights Act will apply to both the Secretary of State
and those provided with information. It is not necessary or sensible
to replicate those requirements in this Bill.
Question 7: Will consideration be given to including
a requirement of authorisation, and a requirement that such authorisation
be conditional on relevance to one of the statutory purposes,
on the face of the Bill?
It is already intended to establish a system of "accreditation"
so that only those organisations that agree to comply with a set
of requirements will be provided with any information from the
Register. Clause 17(3) and 41(6) give the power to set conditions
in regulations that any person seeking information from the Register
must first register prescribed particulars and be approved by
the Secretary of State. In addition the apparatus used and the
method of storage of information would be subject to approval.
Any organisation that did not pass the required standards would
not be accredited and accreditation would be withdrawn if there
was a failure to maintain standards.
DISCLOSURE OF INFORMATION: VERIFICATION OF IDENTITY
Question 8: Will consideration be given to including
a requirement of authorisation, and a requirement that such authorisation
be conditional on relevance to one of the statutory purposes,
on the face of the Bill?
Verification checks under clause 14 can only take
place with the consent of the person concerned. An individual
will be free to choose where and when to produce an ID card under
clause 14. However a similar system of accreditation as proposed
under Clause 17 will be established under Clauses 14 (6) and 41(6)
to ensure that no information is provided from the Register with
the consent of the individual to an organisation that has not
been approved.
Question 9: Will consideration be given to including
such safeguards [as contained under clause 14(4)] on the face
of the Bill, rather than leaving them to regulations, in order
to ensure compliance with Article 8 rights?
As stated at the outset, the Bill is an enabling
measure. It is intended to start issuing ID cards in 2008 and
it would be wrong to attempt to deal on the face of the Bill for
all the exceptions that may be required for particular groups
or cases of individual. The Bill provides the flexibility to do
so at the correct time through secondary legislation. The obligation
under section 6 of the Human Rights Act will apply to that subordinate
legislation and the operation of the scheme in practice.
EXCHANGE OF INFORMATION
Question 10: Please clarify the range of circumstances
in which information could be required to be provided under clause
11.
It is intended that the identity cards scheme should
provide the best possible standard of identification and so it
is vital that the initial checks to verify an applicant's identity
are as thorough as possible. The Cabinet Office study on Identity
Fraud (published in July 2002) recommended greater use of biographical
checks on applicants in order to prevent identity fraud. Clause
11 enables these checks to take place.
Whilst the National Identity Register will be a new
database, applications will require checks to be made against
other databases, such as DVLA's driver information, DWP information
on national insurance and birth, marriage and death records to
establish a "biographical footprint" and protect against
fraudulent applications. In all cases the information sought will
be to confirm identity and will not relate to irrelevant information,
for example driving record. This data sharing to build up a biographical
picture is therefore crucial in establishing that an application
to register is genuine and thereby in maintaining the accuracy
of the Register.
DISCLOSURE OF INFORMATION
Question 11: Will consideration be given to including,
on the face of the Bill, clear limits on the range of bodies to
which information can be disclosed, and the range of purposes
for which it can be disclosed, in order to ensure that the interference
with the right to respect for private life will be in accordance
with law as required by Article 8.2?
Disclosure under clauses 19 and 20 is restricted
to the specified bodies for their legitimate and lawful purposes
e.g. to the police for the prevention and detection of crime.
In relation to the order making powers in clause 19(3),(4) and
(5) the additional purposes would need to be set out in a statutory
instrument and justified to parliament before any information
could be provided. The public authorities receiving the information
would be obliged to deal with it in accordance with their own
common law or statutory powers, including the Data Protection
Act and Human Rights Act.
I have reviewed the drafting of clause 22 of the
Bill following discussions in Commons committee and tabled amendments
for Report stage which will preclude disclosure of "audit
trail" information and limit recipients to public authorities.
1 do not think it would be right to attempt to list these on the
face of the Bill but any proposal to make an order under clause
22 would be subject to an affirmative resolution procedure.
Question 12: How is it to be ensured that disclosure
of personal information under clauses 19-22 would in every case
serve a legitimate aim under Article 8.2?
Just as the framework established by the Bill and
the secondary legislation made under it needs to be compliant
with our obligations, it will also be incumbent upon those operating
the scheme to be mindful of these obligations. Furthermore the
bill creates a new post of National Identity Scheme Commissioner
to oversee and report annually on the way the scheme is operated
in practice.
Question 13: Will safeguards requiring authorisation,
as well as safeguards requiring a prior assessment of relevance
and proportionality, will be included in the Bill?
Authorisation for example at a particular rank of
police officer will be required together with any other requirements
to be set out in regulations to be made under clause 23, which
deals with the rules for the provision of information without
an individual's consent. These will vary according to the purposes
and structure of the recipient of the information. This is appropriate
material for subordinate legislation. The legal obligations of
public authorities already referred to require them to act in
a proportionate and reasonable matter in exercising their functions.
It is neither practical nor necessary to replicate those safeguards
here.
Question 14: We are particularly concerned at
the potential breach of Article 8 rights in the disclosure of
paragraph 9 Schedule 1 information. In light of the potential
breach of Article 8 rights, will provision for disclosure of this
information will be restricted on the face of the Bill?
As I indicated earlier, I have reviewed the safeguards
relating to the provision of "records of provision of information"
from the register (paragraph 9 of Schedule 1). This is already
constrained by clause 20(4) in relation to crime where there is
a higher threshold of serious crime introduced. However,
to increase the safeguards I have tabled government amendments
for Report which will preclude the provision of this information
by way of an order under clause 22.
I hope that I have provided a satisfactory answer
to all your questions.
I am grateful to see all the Committee's comments
which I have considered very carefully. In view of the comments
you have made on clause 22 of the Bill I have tabled Government
amendments to remove the possibility of "records of provision
of information" (paragraph 9 of Schedule 1) being made available
under clause 22 and to limit the order making powers under this
clause to public authorities only. I hope you will agree that
this provides additional safeguards and in view of what I have
said about the more detailed provisions to be set out in secondary
legislation that the Committee will accept that the Identity Cards
Bill is compatible with our obligations under the European Convention
on Human Rights.
If you agree, I think it would be helpful if I were
to make this reply available to the House for the remaining stages
of the Bill on 10th February.
8 February 2005
