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Overlooked: Surveillance and personal privacy in modern Britain 53 of Commons with little alteration but ran into concerted and sustained opposition in the House of Lords principally led by the Liberal Democrat Peer, Lord Phillips of Sudbury. This eventually led to the compromise described earlier, in which there could be no compulsion of any group without further legislation (although compulsion would still take place when obtaining a new passport). In the end, however, the Government effectively got its way. Many Peers had clearly become increasingly uncomfortable with continually blocking Government legislation. Meanwhile in the Commons, many Labour MPs had recently voted against the Government causing defeats in the Terrorism Bill and the Racial and Religious Hatred Bill passing though Parliament at the same time. Perhaps understandably, many were unwilling to further defy the party whip and thus the Bill received Royal Assent and became an Act. The Act The Identity Cards Act 2006 is not a particularly lengthy piece of legislation. It contains 44 Sections and two Schedules. Considering its name, the Act contains remarkably few clauses about identity cards themselves. Liberty has maintained since the draft ID card Bill was published that the Government’s plans were more concerned with the creation of the NIR than about the cards themselves, which are essentially a by-product of registration. This is borne out by the Contents page of the Act, which makes 11 references to the register but only five to ID cards themselves. As no ID card has yet been produced and the NIR has not yet come into existence, comments about privacy repercussions must be based on the legislative framework creating the scheme. The purpose of this study is not to provide a detailed clause-by-clause analysis of the IDCA. This has been provided elsewhere by Liberty and others 116 . Rather, it will focus on the way in which the main provisions could impact upon privacy. This will not be limited to informational privacy, but also the impact that the fully operational scheme could have on individual privacy by, for example, potentially becoming a tool of internal immigration control. It is not possible to make an accurate prediction as to the full impact on individual privacy. What this work will attempt to do is draw attention to possible areas of future concern. As both the Conservatives and Liberal Democrats have pledged to scrap the scheme if elected it may be that the scheme never moves to full compulsion. Similarly, technical and procurement problems or cost issues may make the scheme unviable 117 . However, we are assuming that things progress according to the legislation passed and the stated intentions of the Government. It should be emphasised that most comments will relate to the initial scope of the Act. Nearly every definition is attached to a power to amend by parliamentary order. The Register At the heart of the Act is the NIR. The first five clauses set up the NIR and create the framework for registration. The two specific purposes of the NIR are to create a means for people to establish their identity and to allow a means for that identity to be checked when necessary in the public interest. This 116 Liberty’s briefings are available at www.liberty-human-rights.org.uk 117 See the Sixth Report of the Parliamentary Science and Technology Committee http://www.publications.parliament.uk/pa/cm200506/cmselect/cmsctech/1032/103202.htm
54 Overlooked: Surveillance and personal privacy in modern Britain is one of the few parts of the Act that is not subject to alteration by public order. However, the definition of what constitutes the ‘public interest’ is so broad 118 that the scope is already extremely generous. In any event there is nothing that would prevent extension through a future act of Parliament. Nearly every piece of legislation before Parliament will contain provisions amending an earlier act. Section 1 also contains the list of what are known as ‘registrable facts’. This is the information that will be held initially on the register. This covers some quite basic information such as name, current and previous addresses, date of birth. It also contains more intrusive data such as current and previous residential status and numbers allocated for identification purposes. Concerns over what might be included in ‘numbers allocated for identification purposes’ raised concerns during passage through parliament about what this could entail – identification numbers being used for a wide range of information. A limitation was put on this so that disclosure (but presumably not retention) of such information could not cover information defined as sensitive personal data within the meaning of the DPA. Actual information recorded in the register is set out in section 3 and schedule 1 of the Act and again can be modified by parliamentary order. As well as the information relating to registrable facts, Schedule 1 also allows identifying information to be held on the register. ‘Identifying information’ is categorised as a photograph, a signature, fingerprints or other biometric information While the scope of information has been initially limited it is likely to expand. Indeed it could be argued that it must expand if the ID card scheme is going to achieve the aims the Government has in mind. A good example of this is the claim that it will help fight terrorism. As mentioned earlier, the former Home Secretary, Charles Clarke, publicly accepted that ID cards would not have prevented the July 2005 attacks. Given that a sophisticated terrorist network is likely to recruit those with no criminal convictions or history with the authorities, this must be right. It is also hard to see how their entry on the NIR would have given any indication that they might be a security risk. In fact, it makes sense to assume that British intelligence and policing agencies have gathered information on anyone that they believe could constitute a risk to national security. The reality would be that anyone who does give reason for concern would become subject to a level of targeted surveillance that would collate information going way beyond what would be contained on the NIR. It is not feasible that the NIR entry would add to information already possessed by the Security Services. This leads to two conclusions. First and most obvious, for the vast majority of people who are not involved in terrorist activity, their entry on the NIR will be irrelevant in combating terrorism. The second conclusion is more worrying. In order to be of any use whatsoever in combating terrorism the NIR must contain more information. This would need to be of a type that would separate those who present no or minimal risk to national security from those who might pose a serious risk. In other words, it would need to be capable of allowing some degree of profiling and categorisation. Profiling has become a significant issue since the London bombings of July 2005. Immediately after the attacks, British Transport Police indicated that some sort of profiling of passengers on the London Underground might be necessary, a view initially endorsed by the then Home Office Minister Hazel Blears 119 . Similarly, following the alleged attempted attacks on planes flying from UK airports 118 Being national security, prevention or detection of crime, immigration, employment prohibition, and provision of public services. 119 http://news.bbc.co.uk/1/hi/england/london/4732465.stm
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Overlooked - Liberty

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