Report - Guardian

150 The LSE Identity Project Report: June 2005protected from cloning, duplication and other practices that might lead to identity fraud.The 1 st and 7 th Data Protection Principles will have to be adhered to closely if theNumber is to be properly protected and used.General IssuesThere are some general data protection issues that run as a common thread throughoutthe Bill and the next section aims to highlight those particular areas of concern.Fair and lawful processingThere are three main elements to the First Data Protection Principle: processing must belegitimate, fair and lawful. The very enactment of the enabling legislation will ensurethat any processing will be legitimate.There may be questions however, surrounding the other two elements of fairness toindividuals and lawfulness. Although the Bill does list more clearly the purposes forwhich the ID card and Register will be used than in earlier proposals, the provisionswithin the Bill for wide ranging powers of the Secretary of State to make amendmentsto the legislation by Order without full consideration by Parliament or public debatemean that the existing purposes and consequent disclosures may become less clear overtime and any Fair Processing Notices provided by either the Home Office orparticipating public bodies will become inadequate.The overall test of fairness may, in the view of some, not be satisfied either: chargingindividuals for the issue of the cards themselves and for keeping that information up todate may not be fair if it disadvantages certain groups of people. Cl. 2(4) states that anentry may be made in the Register for a person whether or not the individual has appliedto be, or is entitled to be in it.Furthermore, once the decision to make the ID card compulsory for all is taken, some ofthe safeguards in the Bill such as the Cl. 18 prohibition on making the production of anID card a condition of providing a service will be undermined and remove theopportunity for a person to choose to rely on alternative means of identification.The third element of the 1 st Data Protection Principle (that of lawfulness) brings intoplay the human rights considerations mentioned earlier. Both the European Conventionon Human Rights and the Human Rights Act allow for intrusions on the right of privacywhere they are necessary to safeguard national security, defence, public security…therights and freedoms of others… and is necessary in a democratic society. One of thequestions which needs to be asked is whether the actions being taken are a proportionateresponse to the harm seeking to be avoided. The Home Secretary has stated that hebelieves the provisions of the Bill are compatible with the Convention Rights but hasyet to demonstrate why he feels able to make this statement. However, it has long beenaccepted by the European Court of Human Rights that the storing of information and theuse of it amount to an interference with the right to respect for private life. 367Compatibility therefore remains to be tested in the courts.367 Leander v Sweden, March, 1987; Amann v Switzerland, February 2000, Rotaru v Romania, 2000