Joint Committee On Human Rights Fifth Report


APPENDIX

Letter from the Chair to Rt Hon Charles Clarke MP, Secretary of State for the Home Department

The Joint Committee on Human Rights is considering how to report on the Identity Cards Bill. It has carried out an initial examination of the Bill, and will be reporting its preliminary views shortly. The Committee has identified a number of provisions of the Bill which are of particular concern in relation to rights under Article 8 and Article 14 of the European Convention on Human Rights (ECHR). The Committee would therefore be grateful for your views on the following points.

INFORMATION HELD ON THE REGISTER

The systematic collection and storage of information on the National Identity Register ("the Register") engages the right to private life under Article 8 ECHR, even without any further use or disclosure of the material.[42] The European Court of Human Rights has held that "information relating to private life" is to be construed broadly[43] to include any information relating to an identified or identifiable individual.[44] As regards each of the registrable facts entered in respect of an individual, it must be shown first that the consequent interference with private life pursues a legitimate aim listed under Article 8.2; and can be justified as necessary in a democratic society, proportionate to the aim it pursues, and in pursuit of a pressing social need. This requires that privacy rights should be interfered with to the minimum degree necessary.

The information which may be held on the Register (under clause 1(5) and Schedule 1) allows for significant intrusion into private life. This is particularly the case since a person's record on the Register will include a record of the occasions on which his or her entry on the Register has been accessed by others (clause 1(5)(h)). We also note that information may be held on the Register for as long as consistent with the statutory purpose of verifying the registrable facts about an individual. This implies that information will be held at least for a person's lifetime, or at least where they remain resident in the UK. The interference with Article 8 rights is likely to increase as information on an individual is held for lengthy periods.[45]

We are concerned at the range of the information which may be held on an individual's record on the Register, and at its apparent lack of relation to the statutory aims, and to the aims listed as legitimate for the purposes of Article 8 ECHR. In particular, we do not see why the statutory purposes necessitate a record of a person's previous residential status, where, for example, someone has previously held a temporary residence permit, but later acquired UK citizenship. Neither do we see why it is necessary for the statutory purposes to record not only a person's main residence, but also any second homes they may have. Thirdly, it is not clear why it is necessary for the statutory purposes to retain records of each occasion on which a person's entry in the Register has been accessed by others, a provision which is potentially highly intrusive of privacy. The Explanatory Notes do not provide any explanation of the compatibility of clause 1(5) with Article 8.

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?

ENTRY ON THE REGISTER OF INFORMATION "OTHERWISE AVAILABLE"

Under clause 2(4), an individual's details may be entered on the Register if information capable of being recorded in an entry is "otherwise available to be recorded". This provision appears to allow for a person's data to be transferred to the Register without their knowledge or consent. This raises two concerns in relation to Article 8 rights. First, that the interference with privacy is not sufficiently foreseeable, in that individuals will not be able to ascertain with sufficient certainty whether and how the interference with private life permitted by the Bill will apply to them, and that the interference will therefore not be in accordance with law as required by Article 8.2. Second, that the gathering and retention of data in this way may not constitute a proportionate interference with Article 8, since there is nothing to ensure that the criteria for entry onto the Register in this way will be necessary for the statutory aims.

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?

DESIGNATED DOCUMENTS

An individual may also be entered on the Register through application for a document which is designated by order of the Secretary of State (clause 4). The effect of Clause 5(2) is that once a document is designated, anyone applying for that document must also apply to be entered on the Register, if he or she is not on the Register already. It is intended that passports, for example, will become designated documents.[46] Designation of some types of documents may also render entry onto the Register compulsory, in effect, for certain categories of people who are obliged to hold the document designated. This would certainly be the case, for example, in relation to residence permits required to be held by certain non-nationals, and might effectively be the case in relation to passports or driving licences, which may be essential to a person's family or working life.

The phased introduction of effective compulsory registration through the designation of documents, raises particular questions of proportionality under Article 8. Firstly, an obligation to hold an ID card which is dependent on relatively arbitrary criteria of whether a person holds a document such as a passport or a driving licence, or whether their passport or driving licence requires renewal, is more difficult to justify as necessary and proportionate to a legitimate aim. Requiring only those who hold driving licences or passports, and who apply to hold or renew them, to enter their details on the Register appears unlikely to provide an effective means of addressing any of the aims of the Bill. It is correspondingly unlikely to be seen as a proportionate response to one of the legitimate aims listed by Article 8.2. One of the conditions of a proportionate interference with Article 8 rights is that relevant and sufficient reasons must be advanced in support of the measure;[47] and it is not clear to us that relevant and sufficient reasons have been put forward to justify a scheme where interference with Article 8 depends on whether someone holds a passport, or whether their passport requires renewal.

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?

Such a system also appears likely to lead to discrimination contrary to Article 14, read in conjunction with Article 8. Article 14 prohibits unjustified discrimination on any grounds,[48] so that, for example, unjustified discrimination against those requiring renewal of a designated document, could breach Article 14. Under Article 14, a difference in treatment may be permitted where there is an objective and reasonable justification for it, and where it is proportionate to a legitimate aim.[49] It is not clear that the discriminatory interference with the private life of those who find it necessary to apply for certain designated documents, as described above, could be justified in this way.

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?

ENTRY ON THE REGISTER BY COMPULSION

Clause 6 provides for entry on the Register to be made compulsory either for all registrable individuals, or for designated groups, by order of the Secretary of State. This reflects the intention that a compulsory scheme of registration would be phased in. The Explanatory Notes suggest that:

"this subsection provides the facility to phase in the compulsory registration, for example, so that different categories of people over a certain age may initially or permanently be excluded from the requirement to register. It might also be compulsory, for example, for a third country national to register before such time as the scheme becomes compulsory for European Economic Area or UK nationals".[50]

Such a scheme raises questions of disproportionate interference with private life under Article 8, as well as of discrimination under Article 14 ECHR, read in conjunction with Article 8. Since obligatory entry on the Register amounts to an interference with Article 8 rights, it must be established in relation to each category of persons whose entry on the Register is made compulsory, that the measure is in accordance with law, pursues a legitimate aim and is necessary and proportionate to that aim. It must also be shown that the imposition of compulsory registration on a particular group is non-discriminatory under Article 14 ECHR, read in conjunction with Article 8 ECHR.

Where, for example, a move to compulsory registration was sought to be justified in the interests of the prevention of crime, or the prevention of benefit fraud, it would need to be shown that there were relevant and sufficient reasons for the designation of a particular group for compulsory registration in support of this aim. We are not convinced that such justification could be made, under a phased programme of the type suggested in the Explanatory Notes. A scheme of compulsory registration that is sought to be justified as necessary for the prevention of crime, for example, would be difficult to justify as necessary and proportionate in response to this legitimate aim where only those persons under a particular age were required to register. Such a scheme would be equally difficult to justify as non-discriminatory in accordance with Article 14 ECHR. Further discrimination issues may arise, under Articles 8 and 14 ECHR as well as in relation to the UK's international human rights obligations of non-discrimination, in particular under the International Covenant on Economic Social and Cultural Rights (ICESCR) where essential services such as healthcare became dependent on entry onto the Register, for certain groups.

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?

DISCLOSURE OF INFORMATION: BENEFITS AND PUBLIC SERVICES

Where entry on the Register, and therefore possession of an ID card, become compulsory for all persons or for a group of persons under clause 6, then under clause 15, access to public services, including services available free of charge, or to benefits, may become conditional on production of an ID card, where provision to this effect is made in regulations by the Secretary of State.[51] Under clause 17 (1), regulations may allow public service providers, when assessing applications for public services where there is a requirement to produce an ID card, to access information in the Register "for the purposes of verifying registrable facts about an individual who has applied for the provision of the service." There is no requirement that the information accessed should be limited to that necessary for provision of the particular service. Disclosure of personal information held on the Register would amount to an interference, in its own right, with Article 8 rights.[52] We doubt that the extent of the information, including potentially irrelevant information, that could be accessed by public service providers under clause 17 would constitute a necessary and proportionate interference with privacy rights under Article 8 ECHR.

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?

It is likely that clause 17 would permit a wide category of persons to access data from the Register in respect of persons subject to compulsory registration, or other persons subject to regulations made under clause 15. A "public service" under clause 17 is likely to include the provision of public services by private organisations.[53] This may, under regulations, become subject to certain limitations under clause 17 (3) and clause 41(6). The Secretary of State may in regulations require that persons to whom information from the Register may be disclosed must be authorised by the Secretary of State. However, such regulation is at the discretion of the Secretary of State and the nature of the safeguards which might be applied are unclear from the face of the Bill.

A requirement that persons accessing the Register must be authorised by the Secretary of State would provide an important safeguard to ensure that access is limited to those organisations that serve a legitimate aim under Article 8.2, and that these organisations would access the Register only where necessary and proportionate in pursuit of a legitimate aim. We also note that he Bill does not contain any requirement to assess the relevance and proportionality of a disclosure to the statutory aims in clause 1(4), prior to disclosure.

Question 7: Will consideration be given to introducing a requirement for authorisation, and for assessment of relevance and proportionality prior to disclosure, on the face of the Bill?

DISCLOSURE OF INFORMATION: VERIFICATION OF IDENTITY

Where a person is subject to compulsory registration, any person or organisation, whether public or private, may require him or her to produce an ID card, or to give consent for an identity check against the information held on the Register, as a condition of doing any thing in relation to that person (clause 18(2)(c)). The information which may be accessed by way of an identity check under clause 14 includes personal information (name, date and place of birth, address and previous addresses); information on current and previous residential status in the UK; personal reference numbers; photograph; and signature.

This provision is potentially highly intrusive of private life, in that it would be likely to result in verification checks of personal data by a wide range of private persons including, for example, potential employers. Although, under clause 14, information from an individual's entry on the Register can only be accessed with his or her consent, this consent may be notional where a person may be unable enter into contracts or access services without giving consent. On the face of the Bill, there is nothing to require that access to the Register under clause 14 should be limited to those who are acting in pursuit of a legitimate aim under Article 8.2, such as the prevention of crime, or one of the purposes of the Bill listed in clause 1(4). Given the unlimited terms of clause 18, it seems unlikely that this should be the case. Clause 14(6) allows for regulations to be made which would require authorisation of those accessing the Register under clause 14. We are concerned that the range of persons who may access personal data under clause 18 and clause 14 may lead to interferences with the right to respect for private life which cannot be justified as necessary and proportionate in pursuit of a legitimate aim.

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?

As the Explanatory Notes point out, clause 14 (4) "allows regulations to be made further restricting the information that may be provided under clause 14. This could be used for example, to ensure that certain categories of people do not have certain information about themselves provided to other organisations, for example where it might be sensitive as in the case of previous names of transsexual people. This power may also be used more broadly to restrict further the information that is provided to specific types of organisations where all the information falling under 14(2) is not necessary for their verification purposes." In our view, such restrictions would be an essential safeguard, without which Article 8 compliance could not be assured.

Question 9: Will consideration be given to including such safeguards on the face of the Bill, rather than leaving them to regulations, in order to ensure compliance with Article 8 rights?

EXCHANGE OF INFORMATION

Clause 11 allows for data sharing between the Secretary of State, designated documents authorities, and other public and private bodies in order to confirm information which is already held on the Register, or which is provided to the Secretary of State or is "otherwise available" to the Secretary of State to be recorded on the Register (clause 11(1)). The Secretary of State can require central government, or public or private bodies, to provide the verifying information (clause 11 (1)). A designated documents authority may also require such information to be provided, where it needs to verify information supplied to it for the issue or modification of a designated document or ID card (clause 11(2)).

Those persons who may be required to produce information under clause 11 include private sector organisations performing statutory functions, as well as central and local government, and public bodies (clause 11(5)). They may also, under regulations made by the Secretary of State, include private organisations (clause 11(6)).[54] Where an obligation is imposed to provide information under clause 11, it may be enforced in civil proceedings.

The circumstances in which verifying information can be required by the Secretary of State under clause 11 appear to be wide. Powers to require information may be exercised not only where an individual has had details entered in the Register, or has applied to be entered in the Register, but where some identifying information is available to the Secretary of State from other sources. This suggests that, even under a voluntary scheme, personal information may be gathered about an individual without that individual's knowledge or consent.

Question 10: Please clarify the range of circumstances in which information could be required to be provided under clause 11.

DISCLOSURE OF INFORMATION

Clauses 19-21 of the Bill allow the Home Secretary to disclose information concerning an individual from the Register to certain public authorities without the individual's consent in certain circumstances. These extensive powers of disclosure are open to further unlimited extension under clause 22, which allows the Secretary of State the power to authorise by order the disclosure of any specified type of information from the Register to any specified person or category of persons, for any specified purposes.

Disclosure of personal data without consent interferes with Article 8 rights.[55] Even without the additional scope for disclosure in clause 22, the wide and uncertain extent of disclosure under clauses 19-21—extending as it does to every function of every government department and to wide-ranging functions of a number of state agencies—risks non-compliance with Article 8. We are concerned that the range of bodies to which personal information may be disclosed, and the purposes for which personal information can be disclosed to them will be insufficiently foreseeable in their application to individuals to be in accordance with law as required by Article 8(2). The possibility of further extension of the powers of disclosure, under clauses 19(3), 19(4) and 22, by order of the Secretary of State, compounds this concern. We are not satisfied that the range of bodies to which information can be disclosed, and the range of purposes for which it can be disclosed, is sufficiently certain or foreseeable for the interference with the right to respect for private life to be in accordance with law as required by Article 8.2.

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?

We are also concerned that disclosure of information permitted by these provisions would not in every case pursue a legitimate aim under Article 8.2. It is not clear, for example, that every function of every government department will necessarily fall within one of the Article 8.2 legitimate aims. Furthermore, under clause 19(4)(d), information may be disclosed to the Commissioners for Customs and Excise or the Revenue Commissioners for purposes connected with "conduct in respect of which the Commissioners have the power to impose penalties". If this relates to civil penalties then it is unlikely to fall within the Article 8.2 legitimate aim of the prevention or detection of crime.

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?

Article 8 compliance also requires that every disclosure of personal information must represent a proportionate response to the aim pursued. We are concerned at the absence on the face of the Bill of any requirement for an assessment of necessity or proportionality prior to the disclosure of information under clauses 19 to 22. Under clause 23(1), information from the Register may be provided without the individual's consent only where the Secretary of State is satisfied that "it would not have been reasonably practicable for the person to whom the information is provided to have obtained the information by other means." Further safeguards may be provided for in regulations under clause 23, and may limit the persons to whom information may be disclosed or require their approval by the Secretary of State. However, no such safeguards are required by the Bill.

Question 13: Will safeguards requiring authorisation, as well as safeguards requiring a prior assessment of relevance and proportionality, will be included in the Bill?

The provisions of the Bill which allow for the disclosure of information under Schedule 1 Paragraph 9, relating to records of previous access to an entry in the Register, require particular scrutiny.[56] The record of access to the Register could contain highly intrusive and comprehensive information on a person's private life, including for example, information on whether and when they have accessed medical services or any other public services, any applications for benefits, and applications for jobs. In this regard, it is a particular concern that the order-making power in clause 22 would allow the Secretary of State to make further provision for disclosure of this material, without the need for additional primary legislation.

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?

The Committee would appreciate a response to these points by Monday 7 February.

26 January 2005



42   Leander v Sweden; Hilton v UK App No 12015/86; Chave v France App No 14461/88, Martin v Switzerland pp No 5099/94 Back

43   Niemietz v Germany (1993) 16 EHRR 97 para. 29; Halford v UK (1997) 24 EHRR 52 Back

44   Amann v Switzerland (2000) 30 EHRR 843 para. 65; Rotaru v Romania (2000) 8 BHRC 43 Back

45   Rotaru v Romania, para. 43  Back

46   EN para. 38 Back

47   Olsson v Sweden (1988) 11 EHRR 259; Dudgeon v UK (1981) 4 EHRR 149 Back

48   Pine Valley Developments Ltd v Ireland Back

49   Belgian Linguistics Case (No 2) (1968) 1 EHRR 252 Back

50   para. 45 EN Back

51   Clause 15(3) makes clear that this does not extend to an obligation to carry an ID card at all times. Back

52   MC v Sweden, Leander v Sweden, op cit. Back

53   Clause 43(2)(d) Back

54   Subject to Parliamentary approval under the affirmative resolution procedure under clause 11(8). The explanatory notes confirm that an obligation to provide information may be imposed on the private sector, para. 77. Back

55   Leander v Sweden, op cit. Back

56   Disclosure of particularly personal data, such as medical records, has been held by the ECtHR to be permissible only where there is an overriding public interest justification MS v Sweden (1999) 28 EHRR Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2005
Prepared 2 February 2005