This article sets out why the ID Cards Bill is incompatible with human rights legislation and proposes that the introduction of an ID Cards scheme will allow government and international agencies (under the Schengen Information System II) to share access to personal information about you.
It identifies the arrogance of a Government that turns a blind eye to anyone, even its own advisory committees and many other clever people with more than half a brain (e.g. London School of Economics, Privacy International, Liberty and Justice) who repeatedly point out that this whole ID Cards thingy IS JUST PLAIN WRONG.
This article does not cover “function creep” which in the authors view will be inevitable and could see ID demanded in a number of situations, unrelated to the intentions in the ID Cards Bill, such as buying a season ticket for public transport, or hiring DVD, or by officials who just enjoy the sense of power it gives them. In continental Europe, there is evidence that members of ethnic minorities are asked to produce identity cards more often than other citizens.
What’s your problem? What have you got to hide?
When it gets in the way of the Government introducing repressive legislation (its preferred legislative modus operandi these days, for example the Serious and Organised Crime & Police Act 2005 et al) the Government is selective about which of its own laws it chooses to comply with and those it chooses ignore. Heaven forbid that a little thing like violation of basic human rights should be allowed to get in its way. Not withstanding the fact that it has been told by the Law Lords that aspects of its anti terror legislation are illegal because it was in contravention of the Human Rights Act; the Government seems intent on pressing on with the ID Cards Bill. Never one to let a little thing like its own legislation and the comments and recommendations of its own Joint Select Committee of Human Rights get in its way (about which see below). Mr Charles Clarke will have his way. What about us, the people that these politicians are supposed to serve? Charles and Tony Hello there - you are public servants - do you remember us - the huddled masses with rights as individuals? No - obviously not.
But we must stop the terrorists and scroungers!
The Government presents the ID Cards Bill as vital in order to combat identity fraud, reduce benefit fraud, prevent serious crime and terrorism, and to ensure that public services are only provided to persons entitled to them. Most of the analysis and parliamentary debate has focused primarily on the potential financial and technical failings in the system's ability to achieve each of these stated aims. This form of debate provides only an economic, scientific or political perspective; but this is about people, about us as individuals.
I have the right to be a free individual
The ID Card proposals presented by the Home Office have significant human rights implications - elements that may be in breach of an individual's rights to private life, as protected by Article 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998. Article 8 states that an individual has the right not to have his or her private life interfered with unless it is necessary to do so “in a democratic society” in order to achieve several designated legitimate aims. It is subject to a test of proportionality, meaning the outcome that can be achieved by the identification scheme must be weighed against the level of interference with the privacy rights of the individual. However, unless a system can achieve these legitimate aims in the first place, then it clearly cannot be necessary, and thus will be incompatible with Article 8.
The Home Office accepts that the Identity Cards Bill provides for a system that is unlike any other in Europe or, in fact, the world. Its central feature is the creation of a central national database that will hold a number of “registrable facts” relating to every individual over 16 years of age, and anyone of a prescribed description.
It is the Home Office’s position that as much of the details are “unexceptionable” and publicly available elsewhere, and as such information will not engage or be contrary to an individual's privacy rights under Article 8. WRONG! This position was rejected by the Joint Select Committee of Human Rights (JSCHR) (Fifth Report of Session 2004–05, HL Paper 35, HC 283), who stated:
“The systematic collection and storage of information on the Register therefore engages Article 8, even without any further use or disclosure of the material. The information which the Bill envisages will be held on the Register 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)), for example, in the use of public services, or by prospective employers, or as part of criminal investigations (regardless of whether these result in prosecutions or convictions). Thus the information held on the Register may amount to a detailed account of their private life.”
Hey Mr Clarke, remember this one? - The test of proportionality required under the Human Rights Act
The Home Affairs Select Committee, said:
“The test should be whether the measures needed to install and operate an effective identity card system are proportionate to the benefits such a system would bring and to the problems to be tackled and whether such a scheme is the most effective means of doing so”
It is highly questionable whether the measure will have a significant impact upon ‘the activities of organised criminals and terrorists who depend on the use of multiple identities’, as the Government contends. Spain has an identity card scheme but this did not prevent the Madrid bombings. The Home Secretary Charles Clarke has conceded that ID cards would not have prevented the London bombing in July this year. Asked by BBC Radio 4's Today programme on 8th July 2005 if ID cards could have prevented the London bombing atrocity, Mr Clarke said: "I doubt it would have made a difference”.
Whether such a scheme would aid in the general fight against crime is unknown but unlikely. However, it is worth noting that Britain is one of only four European countries that do not have ID cards and yet there is almost no noticeable difference in overall crime rates between these four countries and those that do have cards, nor in the amount of benefit fraud. The scheme will, however, disrupt the delicate power balance between the individual and the state, and intrude on personal privacy.
Research what research?
The Home Office, despite conducting two public consultation exercises over the last three years, has commissioned no solid empirical research that shows any link, significant or otherwise, between an identification card system and an impact on most of the ID Card system's alleged aims. In support of their assertion that an identification card will reduce identity fraud, the government has chosen to rely on a Cabinet Office Study dated from almost a decade ago. In contrast, recent studies that have been carried out independently by bodies such as the London School of Economics, Privacy International, Liberty and Justice have provided statistical research that counters the government's claims on almost every issue.
On the balance of available research, it can be inferred that the scheme may well not be able to achieve its stated aims, although such aims may be in themselves (depending on your point of view) legitimate purposes that could allow interference with the privacy rights of the individual under Article 8. Conversely, even if the system could produce some reduction of illegal immigration and employment, the impact in so doing would be so insignificant that it would make the ID card scheme a disproportionate response to the aims it seeks to achieve. A useless idea all ways round then!
But don’t worry dear people it cannot breach you human rights cos its all voluntary to begin with - Voluntary my arse!
The government says it will adopt “an incremental approach” to the implementation of the identity cards scheme, with compulsion only arriving at a later date. However, the Government’s approach is somewhat disingenuous, since during the so-called ‘voluntary stage’, any application for a “designated document” like a driving licence or a passport must include either an application to be entered in the National Identity Cards Register or confirmation that the individual is already registered. Given the large number of people to whom this will apply, the use of the term ‘voluntary’ is thoroughly misleading. As the Home Affairs Select Committee said, “to describe the first phase of the Government’s proposals as ‘voluntary’ stretches the English language to breaking point”.
Won’t the Data Protection Act protect me? – err well actually….. No it won’t
The ID Cards Bill contains unnecessary and undesirably wide powers to record, retain and disseminate personal data. It is essential that people have confidence that highly personal information about them will be kept confidential. Yet under the extremely wide powers in the Bill, the Secretary of State has the authority to disclose certain information recorded on the register without the consent of the individual. The Identity Cards Bill will place all key personal information under the control of the Home Secretary. Legislation since 1995 has permitted a range of public authorities the right to share information on every UK resident. Each of these laws progressively undermines the provisions of the Data Protection Act, a law designed to preserve citizen rights over personal information. The ID Cards Bill is perhaps the final deathblow.
In June 2005 The Information Commissioner, Richard Thomas, voiced his concerns over the plans, warning, “The measures in the Bill go well beyond establishing a secure, reliable and trustworthy ID card.” He said “The measures in relation to the National Identity Register and data trail of identity checks on individuals risk an unnecessary and disproportionate intrusion into individuals’ privacy,” and went on to say “They are not easily reconciled with fundamental data protection safeguards such as fair processing and deleting unnecessary personal information.”
The London School of Ecomonics report published in June 2005 reported that the legislation may arguably contravene the European Convention on Human Rights, the right of free movement for EU citizens, the Disability Discrimination Act and the Data Protection Act.
Schengen Information System
The ID Cards Bill allows for information to be disclosed to national security and intelligence agencies, with the proviso that identifying information held on the register (photograph, signature, fingerprint or biometric information) can only be disclosed if the information could not have been obtained by other means. As Britain is a signatory to the data sharing provision of the Schengen Information System II (see link to Statewatch report below). This means that information will be widely available to international agencies. This allows member state to engage in multi agency sharing of information on people wanted for arrest, to be kept under surveillance or to be subject to specific checks. As categories of people specified in the Schengen Information System II include “violent troublemakers” you can take it as read this will cover people travelling to and from demonstrations.
The Data Trail – we know what DVD’s you rent
Further, the information disclosable will include access to the potentially highly sensitive information generated every time the card is used (the data trail), including, for example, information about an individual’s access to public services such as health services or benefit payments. In addition, information excluding the data trail will be available to the police, Customs and Excise or a prescribed government department for “purposes connected with the carrying out of any prescribed functions of that department or of a Minister in charge of it”; and the data trail will also be available to those bodies if it is for the prevention or detection of crime.
Your personal information in their hands
Personal information could be routinely disclosed to the police as a result of this power. Once the database is linked to other databases, it becomes increasingly vulnerable. Under the data protection act the “seventh data protection principle” requires data controllers to take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Given the importance of the National Register and the number of linking organisations this will be a tremendously difficult, technical and, above all, managerial task (staff vetting, rules, culture etc across many organisations).
And all of this will be “run” by a Government procured public private sector contract - and we all know how “successful” these have been in the past. The Child Support Agency , need I say more? Scary or what?
If the whole ID cards thingy is not bad enough, get this from the Guardian:
“In recent days weeks the home secretary has been touting the notion that our phone, email and internet records should be archived for at least a year for use by security services and police. Clarke believes that mobile and internet service providers should create databases containing information on who we email, who emails us, who we phone, where we use our mobile, our account details and the internet sites we visit. That information would then be made available to police in other EU countries. The idea is known as "communications data retention", extract from the Guardian Wednesday July 13, 2005 The Guardian
Watch out for “function creep” ……. Remember the box of tricks that is the Schengen Information System………. And what about the State powers under the Serious and Organised Crime & Police Act 2005…………
you join up all the dots - it aint hard to do.
Be afraid……………Be very afraid……………..
Yours in fear, fury and fervent solidarity.