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248 The LSE Identity Project Report: June 2005principle in the design of an alternative system, developing an infrastructure that couldbe built on existing trust relations and local identity requirements. The audit trail is thegreatest challenge in the proposed UK system, complicating the architectureunnecessarily, placing the bill and the ID system on legally problematic grounds, andignoring the existing identification structures in British society.The Challenges Arising from the Government’s ModelDespite claims of harmonisation and creating a system that is consistent withinternational obligations and practice, the Government goes much further by designing asystem of unprecedented complexity. As the Home Secretary stated in his first speechon the introduction of the Identity Card Bill, “(it) is a mistake in believing that what weare putting forward is a replica of anything else that actually exists across Europe andthe world”. 665 Technological and legal challenges emerge from these importantdifferences.Three salient features distinguish the Home Office scheme from other identity cardsystems planned or deployed elsewhere in the world.- the accumulation of a lifetime “audit trail” of the occasions when a person’sidentity has been verified and information from the database disclosed;- the construction of a central database containing biometrics for an entirepopulation, to be used for broad purposes, with the intention of eliminating thepossibility that each individual could be enrolled more than once;- the insistence on a single standard identity in order to generate trust, replacing orreframing British social and economic relationships.These novel aspects raise important questions of compliance with Article 8 of theEuropean Convention on Human Rights, which allows for state infringements ofprivacy only to an extent which is necessary in a democratic society and proportionateto permitted justifications which include a “pressing social need” and national security.The UK Parliament’s Joint Committee on Human Rights recently published a report thatseriously questions the compatibility of the ID Cards Bill with the European Conventionon Human Rights. The Committee states that:“For interferences with Article 8 rights to be legitimate … it must beshown that they interfere with privacy rights to the minimum degreenecessary, and that their aim could not be achieved by less intrusivemeans …”The currently envisioned national ID card does not meet this test.If there are reasonable technological alternatives to the Home Office’s scheme whichcan accomplish the objectives permitted by ECHR Article 8 in a way which causes lessinfringement of the privacy rights of the individual, then compliance with ECHRrequires these technological alternatives to be adopted.665 Home Secretary Speech to the IPPR, November 17 2004,http://www.homeoffice.gov.uk/docs3/identitycards_041118speech.htm.
The LSE Identity Project Report: June 2005 249Audit trails and the resulting legal questionsThe Identity Cards Bill defines an “audit trail” that will be held within the NationalIdentity Register. 666 This consists of a record detailing occasions when an individual’sidentity is checked, and consequent disclosures of information. It is the last definition inthe text of the legislation, but it is of primary importance in evaluating the design of thesystem and its impact on civil liberties.The Parliamentary Joint Committee on Human Rights report on the Bill states that theECHR infringement caused by the audit trail is particularly significant since it...will include a record of the occasions on which his or her entry onthe 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 ofcriminal investigations (regardless of whether these result inprosecutions or convictions). Thus the information held on theRegister may amount to a detailed account of their private life. 667On the face of the Bill, access to the audit trail is limited to Agencies concerned withserious crime and national security. But the JCHR notes that:it is a particular concern that the order-making power in clause 22would allow the Secretary of State to make further provision fordisclosure of this material, without the need for additional primarylegislation. 668Moreover, the Regulatory Impact Assessment published by the Home Office states that:The verification service will be available not just to the authoritiesresponsible for maintaining immigration controls but to providers ofpublic services and private sector organisations.Key ID card checks would be performed online to minimise theusefulness of high quality forged cards and to provide an audit trail.Following consultation with key user groups, there is a clearrequirement for most verification checks to be made on-line. Ongoingspecification work is taking account of the need for the verificationservice to have the necessary capacity to support this. 669The Home Office envisions a “single, standard verification service, operating online toachieve full security, (with a) full audit trail of card use”. 670 Consequently, the audit trailcould contain an entry for each instance of online verification with the central database,666 Sch.1(9)….(a) particulars of every occasion on which information contained in the individual’s entry has beenprovided to a person; (b) particulars of every person to whom such information has been provided on such anoccasion; (c) other particulars, in relation to each such occasion, of the provision of the information.667 JCHR, 5 th Report, January 26, 2005, para.13http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/35/35.pdf.668 Ibid para.42.669 http://www.homeoffice.gov.uk/docs3/ria_251104.pdf670 Home Office presentation to Intellect, December 16, 2004, Slide 20,http://www.homeoffice.gov.uk/docs4/Intellect_HO_FINAL.pdf.
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