Report - Guardian

The LSE Identity Project Report: June 2005 157Effects on EU Freedom of MovementThis section 374 describes certain of the issues associated with the United Kingdom’s(UK) proposed Identity Cards Bill, introduced and published by the UK Government on29 th November 2004. A report issued by the Joint Committee on Human Rights on 2 ndFebruary 2005 already has examined the Bill for compliance with human rightslegislation and principles, including notably the European Convention on HumanRights. This section thus does not address that particular subject, but notes that the Billdoes give rise to a number of potential issues as a matter of UK and European humanrights law.This section instead focuses on certain other legal issues raised by the proposedlegislation. In particular, we consider the extent to which the Bill – as currentlyenvisioned by the UK Government – could conflict with existing European Communityprinciples governing the free movement of persons within the European Union (EU).We also tentatively outline other issues that the Bill raises, such as issues relating tothird party liability and possible indirect discrimination arising from phasedimplementation of the identity card scheme.EU Freedom of Movement PrincipleThe Government’s Identity Card Bill would appear to require the mandatory registrationon the National Identity Register of all EU citizens resident in the UK for more thanthree months. 375 This requirement arguably conflicts with EU freedom of movementprinciples and, in particular, with the recently enacted EU Directive on the FreeMovement of Persons, Directive 2004/38/EC (the Directive). The Directive’s provisionssuggest that EU citizens should not and cannot be compelled to register with theNational Identity Register and obtain an identity card, at least not on the conditions setforth in the proposed Bill.EU Free Movement Principles and Directive 2004/38/ECThe free movement of persons within the EU remains one of the four pillars of the EU’sInternal Market. Under the free movement principle, EU citizens retain a fundamentalright to freedom of movement and residence within the EU, as conferred directly byArticle 39 of the EC Treaty, subordinate legislation and related case law. The preciserights of entry and residence now are governed by a complex body of EU legislation.Under legislation that preceded the new Directive, EU citizens could enter anotherMember State “on production of a valid identity card or passport” and stay in thatMember State for up to three months without the need to comply with any formalities,374 This section was prepared for the London School of Economics and Political Science by Covington and Burling.375 “Registration certificates and residence permits for foreign nationals would be issued, taking account of EUstandards, but to the same level of security as the UK identity cards and as part of a single overall system of recordingand verifying the identity of all legal residents”. Cm 6359, Identity Cards: The Government Reply to the FourthReport from the Home Affairs Committee Session 2003-04 HC 130, p 4.