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Identity Cards Act [E/NI/S/W]

The purpose of this Act is to provide a legislative basis for identity cards in the UK.



TERRITORIAL EXTENT

The Identity Cards Act applies to the whole of the United Kingdom. The identity cards scheme will operate on a UK-wide basis to deal with matters which are reserved to the UK Parliament, notably, immigration and nationality. The legislation allows devolved administrations in Wales and Northern Ireland to make regulations making the production of an ID card a condition of providing a public service for which these administrations are responsible. Any requirement for production of an ID card to be a condition of a public service in Scotland which is within the legislative competence of the Scottish Parliament would require authorisation by an Act of the Scottish Parliament. The legislation for identity cards creates new offences. As these offences relate to documents or databases that operate on a UK basis, they will be applicable throughout the UK.

The provisions relating to passports also operate on a UK-wide basis.


SUMMARY AND BACKGROUND

In July 2002, the Government launched a consultation on Entitlement Cards and Identity Fraud (Cm 5557). The consultation period lasted until 31 January 2003. A summary of findings from the consultation exercise was published on 11 November 2003, Identity Cards: a Summary of Findings from the Consultation on Entitlement Cards and Identity Fraud (Cm 6019). The detailed Government's response to the Consultation Points was placed on the Home Office website.

At the same time as publication of the findings, the Government announced its decision to build a base for a compulsory national identity cards scheme. Identity Cards: the next steps (Cm 6020) set out in more detail how the Government would proceed. A draft Identity Cards Bill was published on 26 April 2004 (Cm 6178). This gave effect to the Government's proposals for the introduction of identity cards throughout the UK, as set out in Identity Cards: the next steps. Consultation on the draft legislation ended on 20 July 2004.

In parallel, the Home Affairs Select Committee carried out an inquiry on all aspects of identity cards, including the pre-legislative scrutiny of the draft Bill. The Committee reported on 30 July 2004 (HC130). The Government published its reply to the Report (Cm 6359) and a Summary of Findings from the consultation (Cm 6358) on 27 October 2004.

In November 2004 the Identity Cards Bill was introduced into the House of Commons. The Bill had reached its second reading in the House of Lords when Parliament was dissolved, on 11 April 2005, for the General Election and the Bill fell. The current Bill is very similar to the initial Bill with some minor amendments in relation to, for example: extending the responsibilities of the National Identity Scheme Commissioner, changing the penalty for failing to surrender an ID card from criminal to civil, requiring provision of information from the Register without consent to be subject to an affirmative resolution process.

SUMMARY

There is currently no legislation providing for UK identity cards. The main features of the legal framework needed to introduce identity cards are:

  • Setting out the statutory purposes of the National Identity Register

  • Setting up the National Identity Register

  • Establishing powers to issue identity cards

  • Establishing powers to designate existing documents
    • as documents together with which an identity cards would be issued (for example the passport) or

    • other documents as ID cards themselves

  • Ensuring biographical checks can be made against other databases to confirm an applicant's identity and guard against fraud

  • Setting out what information would be held and safeguards to protect an individual's data

  • Enabling public and private sector organisations to verify a person's identity with the person's consent before providing services

  • Defining the circumstances in which specified agencies, such as the police could be provided with information held on the Register without an individual's consent

  • Creating new criminal offences relating to misuse of identity cards and other identity fraud issues

  • Including powers to link future access to specified public services to production of an identity card

  • Providing a power to make it compulsory for an individual to register, including sanctions against failure to register
In addition, the Act includes provisions relating to passports:
  • To amend the Consular Fees Act 1980 (c.23) in order to create a general power which will allow cross subsidisation of fees for different types of passports and passport services. This will provide a statutory basis, for example, to the issue of free passports which has already been introduced for those born on or before 2 September 1929 to be subsidised by charges made for other passports

  • To ensure biographical checks can be made by the Secretary of State (to be exercised by the United Kingdom Passport Service) for the purpose of verifying information supplied by applicants for UK passports
The Act deals with eleven main topics
  • Registration

  • ID cards

  • Maintaining accuracy of Register etc.

  • Provision of information from Register for verification purposes etc.

  • Required identity checks

  • Other allowed uses of registered information

  • Supervision of operation of Act

  • Offences

  • Civil penalties

  • Fees and charges

  • Provisions relating to passports
COMMENTARY ON SELECTED CLAUSES

Registration

Clause 1: The National Identity Register

This clause establishes the National Identity Register for the identity cards scheme and sets out the purposes of the Register. It provides that the Register is only for specified purposes, the 'statutory purposes'. These specified purposes are set out as the:

(i) Provision of a convenient method for individuals to prove their identity;
(ii) Provision of a secure means of identifying individuals where that is in the public interest.

Further explanation of what is meant by personal information that may be held is given - the registrable facts. This, in particular, includes name, date and place of birth, nationality, gender, immigration status, address, physical characteristics of a person that are capable of being used for identification purposes (e.g. biometric information), information included at a person's request; and historical records of this personal information. These registrable facts may only be amended by further primary legislation and thereby limit the scope of the information that may be held by the scheme.

Biometric information is defined in relation to an individual as data about his external characteristics. Examples include iris patterns and fingerprints. This biometric information may be recorded in the Register by virtue of the definition of registrable facts, clause 3 and Schedule 1.

Clause 2: Individuals entered in Register

This clause sets out who may be entered on to the Register and the Secretary of State's duty to make arrangements to enable these entries to be made.

It sets out the individuals who are entitled to be entered on the Register. These include individuals who have attained the age of 16 and are residing in the UK. They also include individuals of a description prescribed in regulations made by the Secretary of State who have resided in the UK, or who are proposing to enter the UK. This is to allow flexibility since whilst the ID card will be for all UK residents, it may be in the future that they would want through regulations to allow for example, British citizens resident overseas to register before returning to live in the UK.

It gives the Secretary of State power to exclude individuals from the entitlement to be entered on the Register if they do not meet prescribed requirements in relation to time of residence in the UK or if they are residing despite having no entitlement to remain (for example, individuals who are seeking asylum in the UK). The age of 16 mentioned previously may be varied by secondary legislation.

It provides that in some circumstances, a person who has not applied or is not entitled may be entered into the Register for reasons consistent with the statutory purposes. For example, this power would allow the entry on to the Register of a failed asylum seeker who had not applied for an ID card but whose information including biometric data was available. This means that if he applies to stay in the UK again using a different identity, his previous status as a failed asylum seeker will have been recorded. This subsection does not constitute a power to obtain the biometric data of a person in the first place.

It provides that the Secretary of State may modify the age of entry on the Register by order subject to the affirmative resolution procedure.

Clause 3: Information Recorded in Register

Clause 3 sets out the information that may be recorded in the Register. Information may be recorded only if it is included in Schedule 1, if it is otherwise necessary for the administration of the scheme, or if it is provided for in this clause.

Schedule 1 may be amended by secondary legislation following a resolution in both Houses of Parliament to add to the list of information that may be recorded on the Register. However, any additional information must be consistent with the statutory purposes of the Register. So, for example, this power to amend Schedule 1 could not be used to include criminal records in that Schedule without further primary legislation as recording previous criminal convictions is not covered by the definition of registrable facts and so is not consistent with the statutory purposes of the Register.

It enables other information to be recorded if:
  • an individual has asked for it to be included

  • regulations include it as information that may be subject to such a request
and the Secretary of State agrees.

It enables the Secretary of State to agree with a person being registered what facts should be registered where there is some doubt as to what the true facts are, for example, place or date of birth. It could also be used where a new identity needs to be established, for example, for those in a witness protection programme.

It allows information to be kept for as long as it is consistent with the statutory purposes for it to be so kept.

Clause 4: Designation of documents for purposes of registration etc.

Clause 4 provides for the Secretary of State to have the power by order to designate documents for the purposes of the Bill, for example, passports. Any orders will be subject to the affirmative resolution procedure. These documents are referred to in the Bill as 'designated documents'. Persons responsible for issuing designated documents are referred to in the Bill as 'designated documents authorities'. If a document is designated, anyone applying for one will also need to apply for an ID card unless he already holds one. Under that clause, application procedures for designated documents must include the information necessary for the identity cards scheme.

Clause 5: Applications relating to entries in Register

Clause 5 sets out how an application for entry to the Register should be made.

Clause 6: Power of Secretary of State to require registration

This clause provides a power to require an individual to apply to register. The identity cards scheme will be introduced in two stages. Initially it will not be compulsory to register although in applying for a designated document from the time that that document is designated, it will be mandatory to register or confirm an entry already made in order to obtain the designated document. If the Government were to consider that the conditions were right, it would use powers in this clause to make registration compulsory, whether or not a person applies for a designated document. Identity Cards: the next steps which sets out in more detail the issues which the Government would want to consider before moving to compulsion.

Immigration Rules may already include a requirement for foreign nationals to obtain a document, such as a residence permit. If the Government were to designate such a document under clause 4 then it would also become a requirement for such individuals to make an application for registration in line with the Identity Cards Act. However, it would also be possible for an order under clause 6 to make it a requirement for foreign nationals of a description specified in the order to register and to be issued with an ID card in the form of a designated residence permit. If an order was not made under clause 6 and instead the Government relied on a change to the Immigration Rules, then it would not be possible to require production of an ID card under clause 15 and the prohibition on the requirement to use an ID card in clause 18 would remain.

Subsection (1) provides a power for the Secretary of State to make registration compulsory. However, this power does not extend to requiring people to produce ID cards for required identity checks for the provision of public services (see clause 15). This subsection provides the facility to phase in the compulsory registration, for example, so that different categories of persons are required to register by different dates. It may be, for instance, that people over a certain age may initially or permanently be excluded from the requirement to register. It might also be compulsory, for example, for a third country national to register before such time as the scheme becomes compulsory for European Economic Area or UK nationals.

Subsection (4) provides that the maximum civil penalty for failure to register when required to do so or for contravening a requirement under clause 5(4) (i.e. not providing the further information required by the Secretary of State) in connection with an obligation under clause 6 would be a civil penalty of up to 2,500.

Subsection (5) provides that a person who contravenes a requirement imposed under clause 5(4) other than in connection with an application required under clause 6, is liable to a civil penalty of up to 1,000. This penalty is for those people who are required to and do register but then fail to provide the information required by the Secretary of State to ensure the entry is complete and accurate and is therefore distinct from the penalty in subsection (4).

Where an individual fails to satisfy his obligation under subsections (2) and (3), he is liable for a further civil penalty not exceeding 2,500 in respect of each time the Secretary of State gives him notice requiring him to make an application and he fails to do so before the set deadline.

Clause 7: Procedures for orders under s. 6

This clause sets out the procedures for the so called 'super-affirmative' process which would apply to compulsory registration. This means that if the Government decides that it wishes to make registration compulsory, whether or not a person applies for a designated document, it must proceed in the following stages:
  • The Government must publish in a report its reasons for wanting to make registration compulsory, including a proposal for how compulsion will operate, for example the particular categories of individual to whom the requirement would apply and the timetable for its implementation (subsection (2)(a) and (b))

  • Both Houses of Parliament must debate and vote on the proposal and they may modify the proposal (subsection (2)(c))

  • The Government would lay a draft order consistent with the proposal approved by both Houses

  • The draft order so laid would then need to be approved by both Houses (subsection (1) and subsection (2)(d))
If either House did not approve the proposal or the Government was not content with the proposal as modified by either House, it must start the process again with a fresh report and proposal if it decides to make the case again for a move to compulsion (subsection (3));

Subsection (4) provides that if the Government wishes to make changes to the compulsion provision which do not have the effect of 'increasing' the degree of compulsion, for example, lowering the age beyond which it would not be compulsory to register, it does not need to go through the 'super-affirmative' process but may do so through an order subject to the affirmative resolution procedure.

Subsection (6) defines the term compulsory registration.

ID cards

Clause 8: Issue etc. of ID cards

This clause sets out the procedure for issuing ID cards. The identity cards scheme will involve the issuing of an ID card to every person registered as entitled to remain in the United Kingdom for longer than a specified period. The Secretary of State has the power:
  • To issue ID cards

  • To designate documents
    • such as the passport as documents together with which ID cards would be issued; or

    • as ID cards themselves (e.g. if a residence permit issued to a foreign national were designated)
'ID cards' in this Bill is used as the generic name and is defined under this clause.

It explains that an ID card is a card which holds personal information as recorded on the National Identity Register and/or data enabling the card to be used for verifying information on the Register, for example, a personal identification number. An ID card may form part of a designated document. It can be a separate card issued together with a designated document. Clause 43(6) provides that references to a designated document being issued together with an ID card include references to the two documents being comprised in the same card. It can also be a separate card issued as an ID card (e.g. a standalone ID card issued on its own).

Regulations specifying the information that may be recorded in or on an ID card or the form in which the information is to be recorded need the agreement of Parliament via affirmative resolution Subsection (9).

Maintaining accuracy of Register etc.

Clause 11: Power to require information for validating Register

This clause deals with the provisions necessary to permit data to be shared with the Secretary of State and designated documents authorities for the purposes of verifying information to be placed or which is currently placed on the National Identity Register where no such powers already exist. This is specifically about ensuring the accuracy of the Register and it does not confer the power to share data for wider purposes; neither does it allow the Secretary of State or a designated documents authority to request information that is not relevant for the purposes of validating the Register. Under this Bill, Parliament will have to approve each 'gateway' via an affirmative order.

Provision of information from Register for verification purposes etc.

Clause 14: Use of information for verification or otherwise with consent

This clause enables the provision of an identity verification service which operates with the consent of the individual, including an accreditation requirement for user organisations and their equipment.

Required identity checks

Clause 15: Power to make public services conditional on identity checks

Identity Cards - the next steps (Cm 6020) sets out two objectives for the use of identity cards in relation to public services. These were to simplify checks on eligibility for services and to reduce fraudulent use of services. This clause provides a power to make this link between the identity cards scheme with the provision of public services in cases where existing powers may be unclear. Clause 43(2) defines what is meant by the provision of a public service.

Subsection (1) provides a power to make regulations which allow or require a person who provides a public service to make it a condition of providing the service that an individual produces an ID card and/or other evidence of his registrable facts. This will give service providers flexibility in deciding what proof of identity is the most appropriate in the particular circumstances and what level of identity check is necessary. The ID card on its own may suffice. Alternatively, someone's identity could be checked against the Register, using for example a biometric, when the card is not present.

Subsection (2) ensures that regulations made under subsection (1) cannot make it a requirement to produce an ID card or information which can be verified against the National Identity Register in order to receive payments provided under legislation or any service provided free of charge before it is compulsory for that individual to register under clause 6. This means that an order under clause 15 cannot make it a requirement for a person to produce a card, for example to receive social security benefits or free NHS treatment, until it is compulsory for that person to register under clause 6.

Subsection (3) specifically excludes the possibility of an order under clause 15 making the carrying of cards compulsory.

Clause 44(2) provides that the powers under this clause do not extend to public services provided in Scotland that are within the legislative competence of the Scottish Parliament. If the Scottish Parliament wishes to make production of a card a condition of provision of those services, it would first have to pass its own Act.

Clause 17: Power to provide for checks on the Register

This clause provides a power to the Secretary of State to enable checks to be made of information recorded in the Register by people providing public services. It also gives the Secretary of State the power to regulate identity checks, including an accreditation scheme for user organisations and the equipment they are using.

Clause 18: Prohibition on requirements to produce identity cards

This clause makes clear that there may be no requirement on individuals by organisations to produce an ID card as the only acceptable proof of identity before a move to compulsion under clause 6, other than in the circumstances set out in subsection (2).

Other allowed uses of registered information

Clause 19: Use for purposes of public authorities etc.

This clause provides the power to provide specified information held on the Register to public authorities or other specified persons for specified purposes without the consent of the registered person. Subsection (1) allows for this provision so long as it is authorised by this clause and complies with clause 23 (which sets out the rules for using information without an individual's consent).

Clause 21: Use for correcting inaccurate or incomplete information

This clause provides a power to provide information from the Register to a person or organisation who has supplied information (including but not only information provided under clause 11) to help verify an entry in the Register where information provided proved to be inaccurate or incomplete.

Supervision of operation of Act

Clause 24: Appointment of National Identity Scheme Commissioner

This clause establishes a National Identity Scheme Commissioner to oversee the operation of the identity cards scheme and the National Identity Register including the uses to which ID cards are being put and the provision of information held on the Register.

Clause 25: Reports by Commissioner

Under subsection (1) the Commissioner is under a duty to report each year to the Secretary of State. There is also provision at Subsection (2) for the Commissioner to report at any other time regarding any matter related to the carrying out of his functions.

Clause 26: Jurisdiction of Intelligence Services Commissioner and Tribunal

This clause amends the Regulation of Investigatory Powers Act 2000 which sets out the functions of the Intelligence Services Commissioner and the Investigatory Powers Tribunal to add to their functions, oversight of the provision of information held on the Register to the intelligence and security agencies as defined in that Act.

Offences

Clause 27: Possession of false identity documents

This clause creates new criminal offences related to possessing false identity documents.

Clause 30: Providing false information

This clause creates a new offence of providing false information for purposes connected with securing an entry or modification of an entry on the Register or obtaining for himself or another person an ID card.

Clause 31: Tampering with the Register etc.

This clause creates an offence of tampering with the Register.

Civil penalties

Clause 33: Imposition of civil penalties

This clause sets out the way in which civil penalties under the identity cards scheme will operate. Where the Secretary of State is satisfied that the person is liable to a civil penalty as set out in the legislation, the Secretary of State may issue in the prescribed manner a notice to the defaulter, setting out why the penalty is being imposed, the amount of the penalty, the date by which the penalty must be paid, how payment should be made, setting out the steps the defaulter may take if he objects and finally explaining the powers to enforce the penalty.

Clause 34: Objection to penalty

Clause 34 sets out the steps to be taken if the recipient of the notice objects.

Clause 35: Appeals against penalties

This clause sets out the process of appealing against penalties.

Fees and charges

Clause 37: Fees in respect of functions carried out under Act

This clause makes provision for the payment of fees. Subsection (1) enables fees to be set for:
  • Applications for entries to be made, for their modification or the issue of ID cards

  • Making or modifying entries

  • Issue of ID cards

  • Applications for provision of information contained on the Register

  • Provision of such information

  • Applications for confirmation of any information recorded

  • The issue or refusal of such a confirmation

  • Applications for the approval of a person or apparatus (the accreditation)

  • The grant of such approvals
Subsection (3) allows the Secretary of State in prescribing fees under subsection (1), to take into account the wider costs associated with the identity cards scheme. For instance, a charge may need to cover not just the issue of an ID card but also the costs of updating the card when details such as address change, which may not necessarily incur an additional fee. This subsection also gives a power to charge different fees in different circumstances, to allow for example for a reduced fee for some cards or to cross-subsidise between different cards. Subsection (3)(d) also includes a power to take into account the cost of issuing ID cards in connection with the issue of designated documents. Subsection (3)(e) allows for expenses incurred in the provisions of consular services to be taken into account in setting fees, for example where a card was valid for travel this might be appropriate.

Clause 44: Scotland

Subsection (1) provides that the use in relation to Scotland of the Register or an ID card is authorised only in matters which are reserved or which are in accordance with an Act of the Scottish Parliament.

Subsection (2) ensures that regulations may not be made under clause 15 which allow or require the imposition of a condition on the provision of a public service in Scotland except where it is in relation to a reserved function. Separate legislation by the Scottish Parliament would be required if, for example, it were proposed in the future to require an ID card to be produced as a condition of accessing a devolved public service in Scotland.

Subsection (3) provides that nothing in this clause restricts any of the provisions of this Act authorising information from the Register to be provided. For example, provision of information to the police in Scotland under clause 19 or for verification with consent under clause 14. This clause also does not restrict the powers under this Act to make other provision authorising such information to be provided to a person in Scotland (for example, regulations may be made under clause 22(1) to permit information to be provided to the Registrar General of Births, Deaths and Marriages for Scotland).

Schedule 1: Information that may be recorded in Register

Schedule 1 sets out the information that may be recorded in the Register. This includes:
  • Personal information - names, date and place of birth, gender, addresses

  • Identifying information - photograph, signature, fingerprint, other biometric information

  • Residential status - nationality, entitlement to remain, terms and conditions of that entitlement

  • Personal reference numbers - for example the National Identity Registration Number and other government issued numbers, and validity periods of related documents

  • Record history - information previously recorded, audit trail of changes and date of death

  • Registration and ID card history - dates of: application, changes to information, confirmation; information regarding: other ID cards already issued, details of counter-signatures, notification under clause 13(1) and requirements to surrender an ID card

  • Validation information - information provided for any application, modification, confirmation or issue; other steps taken in connection with an application or otherwise for identifying the applicant and verifying the information; particulars of any other steps for ensuring there is an accurate entry in the Register; and particulars of notification of changes

  • Security information - personal identification numbers, password or other codes, and questions and answers that could be used to identify a person seeking provisions of information or the modification of an entry

  • Records of provision of information - how and when any information from an entry was provided to any person or body
EUROPEAN CONVENTION ON HUMAN RIGHTS

An Identity Card scheme

Of the 25 EU member states, all apart from the UK, Ireland, Denmark and Latvia already have identity cards schemes. Some of these schemes are voluntary and some are compulsory. Some schemes, unlike the proposed UK scheme, include a requirement to carry the card.

The details of how the scheme will work in practice may raise issues under Article 8 of the Convention (right to private life). Any interference with Article 8 rights will need to be justified as in the public interest in accordance with Article 8.2 ie to be proportionate measures in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals or for the protection of the rights and freedoms of others. Clause 1 (4) of the Bill sets out those aspects of the public interest which are the purposes of the National Identity Register.

In so far as Article 8 may be engaged, the government takes the view that any interference will be necessary and proportionate, in pursuit of the legitimate aims set out in Article 8(2), and in accordance with the statutory purposes set out in clause 1 of the Act.

Retention and Provision of Information

Schedule 1 of the Act lists the information which may be held on the Register. It includes identity information such as name, photograph and biometrics. The Act contains a range of safeguards to ensure that any interference with rights to privacy is proportionate. The information which can be contained in the Register is strictly limited by clause 1 and Schedule 1. The information which can be provided for verification with the consent of the registered person is further limited by clause 14. Disclosure without consent is provided for in clauses 19 to 23 of the Act. Those clauses are structured so that the persons to whom and the purposes for which information may be provided are specified. The provisions are thus tailored to each recipient in order to ensure compliance with the principles of necessity and proportionality. The information which might be regarded as particularly sensitive- the audit trail of how and to whom information about an individual has been provided in paragraph 9 of Schedule 1- may only be provided in very limited circumstances.

Compulsion

The exercise of powers under clause 6 to require individuals of a specified description to register may potentially engage Article 14 rights (prohibition of discrimination). Whether Article 14 rights were engaged would depend on the terms of the order (which is subject to the 'super-affirmative' procedure). An order which required only certain foreign nationals or only those under a particular age to register would need to be based on objective and reasonable justification.

Those applying for documents which have been designated under clause 4 would also be required to register. The designation of documents is a pragmatic means by which, over a number of years, the majority of the population will obtain an ID Card. The government does not regard designation of passports as engaging Article 14 Being an applicant for a passport is neither a status nor a personal characteristic within the ambit of that article. If Article 14 rights were engaged by the designation of a particular description of document, any difference in treatment would need to be based on objective and reasonable justification.

The Act will have effect in the context of the Data Protection and Human Rights Acts of 1998. Rights and duties under those Acts will apply to the operation of the scheme. For example, subject access and rectification rights of individuals and the Secretary of State's duties as a data controller will apply to the scheme. The Secretary of State and public authorities who may receive information under the Act will be obliged to exercise their functions compatibly with the Convention rights by virtue of section 6 of the Human

Further Information

  1. Identity Cards Bill Explanatory Notes
  2. Legislation on Identity Cards: A Consultation
  3. Identity Cards The Next Steps
  4. Identity Cards Bill