UK Identity Cards Bill (take deux - explanatory notes)

25/05/2005

These notes refer to the Identity Cards Bill
as introduced in the House of Commons on Wednesday 25 May 2005 [Bill 9]

IDENTITY CARDS BILL

EXPLANATORY NOTES

INTRODUCTION

1     These explanatory notes relate to the Identity Cards Bill as introduced in the House of Commons on Wednesday 25 May 2005. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3     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.

4     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.

5     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.

6     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.

7     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

(i)     as documents together with which an identity cards would be issued (for example the passport) or

(ii)     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.

8     In addition, the Bill 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.

TERRITORIAL EXTENT

9     The Identity Cards Bill 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.

10     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.

11     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.

12     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.

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

OVERVIEW OF THE STRUCTURE

14     The Bill 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 CLAUSES

Registration

Clause 1: The National Identity Register

15     This clause establishes the National Identity Register for the identity cards scheme and sets out the purposes of the Register.

16     Subsection (2) provides that the Register is only for specified purposes, the "statutory purposes". These specified purposes are set out in subsection (3) 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.

17     Subsection (4) defines 'necessary in the public interest' as being in the interests, or for the purposes of:

• National security;

• Prevention and detection of crime;

• Enforcement of immigration controls;

• Enforcements on prohibitions on unauthorised working or employment; and

• Efficient and effective provision of public services.

18     National security as well as the prevention and detection of crime includes action to prevent terrorism. Crime also includes "identity fraud and theft".

19     Subsections (5) to (7) give further explanation of what is meant by personal information that may be held, 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.

20     Biometric information is defined in clause 43(1) 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

21     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.

22     Subsection (2) 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 we would want through regulations to allow for example, British citizens resident overseas to register before returning to live in the UK.

23     Subsection (3) gives the Secretary of State power, by regulations, 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 as provided for in subsection (6).

24     In general, an entry on the Register must be made if an application is made and the person is entitled to be entered (subsection (1)).

25     Subsection (4) 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.

26     Subsection (5) provides for every person registered on the National Register to be assigned a unique number, the National Identity Registration Number to be attached to the information recorded about an individual. The format of the National Identity Registration Number is to be specified in regulations. Other personal reference numbers may be recorded on the Register as provided for in Schedule 1, paragraph 4.

27     Subsection (6) 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

28     Clause 3 sets out the information that may be recorded in the Register.

29     Subsection (1) provides that 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 subsection (2).

30     Schedule 1 may be amended by secondary legislation following a resolution in both Houses of Parliament (subsections (5)-(7)) 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 in clause 1(3).

31     Subsection (2) 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.

For example, an individual may ask for emergency contact details to be included on the Register.

32     Subsection (3) 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 would prevent the false documents offences in clause 27 from applying.

33     Subsection (4) allows information to be kept for as long as it is consistent with the statutory purposes for it to be so kept. This will make verification of individuals easier by ensuring an audit trail of changes is made, so a person changing information held on the Register to avoid detection by law enforcement agencies would be identified. This would also enable the Register to retain information of individuals who had died or left the country and thereby prevent fraudulent use of these identities.

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

34     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 (see clause 5(2)). Under that clause, application procedures for designated documents must include the information necessary for the identity cards scheme.

35     Subsection (2) provides that the Secretary of State may only designate documents which are issued under a statutory power, by a Minister or a Northern Ireland department, for example passports or residence permits.

Clause 5: Applications relating to entries in Register

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

37     Subsection (1) provides that an application can be made by being included in an application for a designated document or by being submitted directly to the Secretary of State.

38     Under subsection (2), if an application for a designated document is submitted, then the application must also include one of the following:

• an application to be entered in the Register;

• confirmation that the individual is already registered and confirming his entry;

• confirmation that the individual is already registered and notifying changes to his entry.

References to confirming an entry relate only to the information in paragraphs 1 to 5 of Schedule 1 or information voluntarily added (clause 43(4)).

39     For example if, as is intended, passports were designated documents, an individual in applying for a passport must at the same time include an application to be entered in the Register if he is not already entered in the Register or else confirm his entry. In practice, information on the designated document application form is likely to include all the information needed to create an entry on the Register or to verify an existing entry.

40     Subsection (3) provides that an application for registration or confirmation of entry should be accompanied by such information as may be prescribed by the Secretary of State. The information required may vary for different categories of person. For example, third country nationals may be required to provide information regarding their immigration status.

41     Under subsection (4) the Secretary of State may make further requirements of applicants in order to verify information to be entered on the Register and keep that information up to date, for example, in cases of doubt or suspected fraud.

42     Subsection (5) expands on what an individual applying to be entered in the Register or confirming his entry in the Register may be required to do under subsection (4). This includes attending in person at a specified place and time, agreeing to be photographed, allowing biometric information to be recorded and providing any other information that may be required by the Secretary of State. The meaning of "biometric information" and "fingerprint" is the same as that provided in clause 43(1).

43     Subsection (6) ensures that information may not be required by regulations under this clause unless it is for the statutory purposes of the scheme as set out in clause 1(3) and consistent with the recording of the registrable facts. This is to ensure that there is no expansion in the scope of information that must be provided by individuals without new primary legislation.

Clause 6: Power of Secretary of State to require registration

44     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 (see clause 5) 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. See Cm 6020, Identity Cards: the next steps which sets out in more detail the issues which the Government would want to consider before moving to compulsion.

45     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.

46     Subsection (1) provides a power for the Secretary of State to make registration compulsory. This power would apply regardless of whether a person applies for a designated document (for which an application to register or be registered is a requirement as soon as the document is so designated). 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.

47     Subsection (2) ensures that in making registration compulsory, the order to do so may include an obligation on individuals to apply for registration in accordance with clause 5. The order will also set a future date by which people included in the order should have made an application (subsection (3)).

48     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.

49     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).

50     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

51     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)).

52     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));

53     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.

54     Subsection (5) sets out how the calculation should be made of the 60 days required between the laying and approving of the draft order mentioned above.

55     Subsection (6) defines the term compulsory registration.

ID cards

Clause 8: Issue etc. of ID cards

56     This clause sets out the procedure for issuing ID cards.

57     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

(i) such as the passport as documents together with which ID cards would be issued; or

(ii) 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.

58     Subsections (1) and (2) explain 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 (e.g. if a residence permit issued to a foreign national were designated). It can be a separate card issued together with a designated document (e.g. if the British passport is designated, a separate ID card would be issued alongside it). 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).

59     Subsection (3) provides for prescribed information to be recorded on an ID card and parts of it to be in an encrypted form. The exact specification and design of ID cards has yet to be determined but when it is these will be set out in regulations. This subsection also provides that the ID card will have a limited validity. Different validity periods may be specified for different categories of person, for example, an elderly person's ID card may remain valid for the rest of his life without the need for renewal, whereas a foreign national's may be linked to the length of authorised stay. Subsection (3)(d) ensures that the card remains the property of the person, or authority, which issues it.

60     Subsection (4) requires that except in prescribed cases ID cards must be issued to individuals who are entitled to be, and whose personal information has been, entered on the Register. However, there are special cases where someone who is not required to be issued with an ID card may be issued with an ID card, providing registrable facts about him have been entered in to the Register (subsection (5)). For example, this may be used for individuals who are not entitled to be entered but who may in special circumstances be entered on the Register e.g. foreign nationals residing in the UK for less than 3 months but whose passport has been surrendered for bail purposes and who therefore need proof of identity.

61      Subsection (6) provides that an ID card will only be issued once an application has been made and sufficient information has been provided for the individual to be entered on the Register or an existing entry is confirmed.

62     Under subsection (7) an application for a designated document must include an application for an ID card in the manner prescribed unless the individual already hold an ID card. Where an application for registration is made in pursuance of a requirement under clause 6 (compulsory registration), the application must also include an application for an ID card in the prescribed manner. In practice, the application form for a designated document will contain the information required to make an application for an ID card rather than requiring two separate application forms to be completed.

63     Subsection (8) ensures that any other application for an ID card must be in the prescribed manner, and should be made to the Secretary of State or in certain circumstances to a designated documents authority and with the prescribed information.

64     In the case of a designated documents authority, an application for an ID card may in certain circumstances be made separately from any application for the designated document. This allows a designated documents authority to issue an ID card that is not part of or issued with a designated document.

65     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).

66     None of the provisions in this or any other clause places any constraints on the type of organisations which may be involved in the issuing process. For example, private sector organisations may have certain parts of the process contracted out to them, such as actual production of the card.

Clause 9: Renewal of ID cards for those compulsorily registered

67     This clause provides for the renewal of cards for those individuals who are required by clause 6 of the Bill to be entered into the Register.

68     Subsection (2) makes it a requirement for individuals whose card will expire in the prescribed period or whose card is not valid to apply for an ID card within the prescribed period.

69     Subsection (3) gives the Secretary of State the power to require an individual applying for an ID card under this clause to do certain things so that the Secretary of State can verify the information provided and ensure the accuracy of the Register. Subsection (4) sets out what these requirements might be and includes personal attendance at a specified place and time, the recording of biometric information, being photographed and providing such other information as may be required.

70     An individual who fails to renew or to provide the information requested to verify an application is liable to a civil penalty not exceeding £1,000 (subsection (5)).

Clause 10: Functions of persons issuing designated documents

71     A designated documents authority is defined as an issuer of a designated document. This clause sets out how common standards will be set for all designated documents authorities in carrying out their functions in relation to the Register and ID cards.

72     Subsection (1) requires that a designated document may only be issued if the designated documents authority is satisfied that:

• the requirements imposed by or under the legislation in relation to the application for the issue of that document to that individual have been complied with;

• the Secretary of State has considered and disposed of so much of the application as relates to the making of an entry on the Register or the confirmation (with or without changes) of the contents of such an entry; and

• it has ascertained whether the individual already holds a valid ID card.

73     Subsection (2) requires that, where a designated document is issued to an individual who does not hold a valid ID card, the designated documents authority must ensure that the document is issued with an ID card (as defined in clause 43(6)). This provision ensures that the issue of a designated document is linked to the issue of an ID card only where someone does not already hold a valid ID card.

74     Subsection (3) sets out in more detail the requirements that may be imposed on designated documents authorities, regarding:

• how applications made to them for entry on the Register are to be handled;

• how applications to be issued with ID cards made to them are to be handled, whether they be stand-alone applications or made with applications for designated documents; and

• how applications made to them confirming an individual's entry to the Register are to be handled.

75     Subsection (4) allows the Secretary of State to make regulations requiring those issuing designated documents to notify the Secretary of State where a designated document is modified, suspended or revoked; or required to be surrendered.

Maintaining accuracy of Register etc.

Clause 11: Power to require information for validating Register

76     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.

77     Subsection (1) places a duty on a person to provide information to the Secretary of State for the purposes of verifying an individual's entry to the Register. Subsection (2) extends this obligation to disclose specified information to the designated document authorities. This obligation is mandatory (subsection (3)). Subsection (3) also enables the Secretary of State to require the information within a specified timescale.

78     Subsection (4) sets out that the requirement may be imposed on any person specified for the purposes in an order, for example local government or the private sector. Subsection (5) clarifies that this could also include for example, central government organisations and the devolved administrations in Northern Ireland and Wales. The order making provision to require information is subject to the affirmative resolution procedure (subsection (8)).

79     Subsection (6) provides that orders requiring a person to provide information may be enforced via civil court proceedings. In the case of public authorities, normal public law remedies such as judicial review will apply.

80     Subsection (7) enables the Secretary of State to pay those from whom he is requiring information to be provided.

Clause 12: Notification of changes affecting accuracy of Register

81     This clause sets out how changes in circumstances should be notified in order to maintain the accuracy of the Register.

82     Subsection (1) places a registered person under a duty to notify the Secretary of State of any change in his circumstances that may be prescribed, for example, change of address or change of name, and to notify the Secretary of State of every error in the information held about him of which he is aware. This will enable the Register to maintain accurate information. The notification procedures are to be set out in regulations (subsection (2)).

83     Further information may be required to verify the information that may be entered as a consequence of the notification or to ensure that the entry is up to date (subsection (3)). This requirement to provide further information may include personal attendance, being photographed, allowing biometric information to be recorded or otherwise providing information. Again "fingerprint" and "biometric information" are defined in clause 43(1). The information that may be required by regulations under this clause may only be required if it is consistent with the statutory purposes (subsection (5)).

84     Subsection (6) provides that the maximum penalty for failure to comply with a requirement under this clause is a civil penalty of £1,000.

Clause 13: Invalidity and surrender of ID cards

85     This clause covers invalidity and surrender of ID cards.

86     Subsection (1) provides that regulations can prescribe the manner in which, if the individual knows or has reason to suspect the fact that an ID card has been lost, stolen, damaged, destroyed or tampered with, he must report this to the Secretary of State or other person as prescribed. If a card was issued based on inaccurate information, requires modification or has been lost, stolen, damaged, destroyed or tampered with, or is of a particular sub-set of cards (for example where security has been compromised), or if the holder of the card's entry has been modified, then the card may be cancelled (subsection (2)). "Damaged" includes becoming unreadable or unusable and "tampered with" modified or copied for an unlawful purpose (subsection (8)).

87     Subsection (3) provides that if a person is in possession of an ID card which does not belong to him, without the authority of the individual to whom the card was issued or permission from the Secretary of State, he must surrender it.

88     The Secretary of State may require a person to surrender an ID card that is not his, is invalid, is of a sub-set of cards the Secretary of State has determined should be re-issued, or where an individual is in the possession of an ID card in contravention of a relevant requirement. It may be necessary for example, when renewing an ID card to surrender the old card at the time of re-application. Sub-sets of cards may also need to be surrendered, for example, where the security has been compromised. The card must be surrendered within such period as the Secretary of State may specify (subsection (4)).

89     Failure to surrender in these circumstances would make an individual liable to a civil penalty not exceeding £1,000 (subsection(6)).

Provision of information from Register for verification purposes etc.

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

90     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.

91     Subsection (1) gives the Secretary of State the power to provide a person with certain information recorded in an entry about an individual provided that the individual concerned consents. Provision of information includes confirming that the information is or is not recorded in his entry (clause 43(7)).

92     Subsection (2) provides that only a limited part of the individual's entry on the Register may be provided to a person under this section. This includes information within paragraphs 1, 3 and 4 of Schedule 1, the photograph, signature, information concerning whether the ID card is valid, voluntary information, security questions, the grant/refusal of confirmation that submitted information falling in subsection (3) matches that which is held on the Register and the grant/refusal of confirmation that the individual's entry does not contain information of a particular description within that subsection. This might be necessary for example to verify the identity of an individual whose biometric could not be recorded at the time of enrolment (e.g. because of a medical condition). This limitation on the information that may be checked means that information falling in other parts of Schedule 1, for example the records of provision of information and validation information, may not be provided to organisations verifying identity under this clause.

93     Subsection (2) also allows the confirmation of information (as opposed to the provision) falling in subsection (3). This information includes biometric information (including fingerprint), passwords, codes, security numbers and security answers.

94     Subsection (4) enables the Secretary of State to amend by affirmative order subsection (2) and (3), and further allows regulations to be made further restricting the information that may be provided under clause 14. This could be used for example, to ensure that certain categories of people do not have certain information about themselves provided to other organisations, for example where it might be sensitive as in the case of previous names of transsexual people. This power may also be used more broadly to restrict further the information that is provided to specific types of organisations where all the information falling under 14(2) is not necessary for their verification purposes.

95     Subsection (8) ensures that the restrictions on the provision of data under clause 14 do not interfere with rights to be provided information under other Acts, for example subject access rights under the Data Protection Act 1998.

96     Subsection (5) provides a power to make regulations subject to the negative resolution procedure prescribing how an authority is to be given, the persons who can make an application and in what circumstances an application may be made and how an application can be made.

97     This clause would enable an accreditation scheme to be established so that only those organisations that have been approved would be able to make checks on the ID cards of individuals who have consented to verification checks against the Register. Regulations may include a requirement that to be provided information, the applicant must have first registered certain details with the Secretary of State, that the person and the applicant for information have been approved in the prescribed manner and the equipment being used is also accredited (subsection (6)).

98     Clause 41(7) sets out in more detail what regulations for the approval of a person or of apparatus might include.

Required identity checks

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

99     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.

100     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.

101     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.

102     Subsection (3) specifically excludes the possibility of an order under clause 15 making the carrying of cards compulsory. This includes both the carrying of a card and its production on demand other than for the purposes of an application for a public service.

103     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 16: Procedures for regulations under s. 15

104     This clause sets out the procedure for making regulations under clause 15, including how this will apply to devolved administrations.

105     Subsection (1) sets out who may make regulations under clause 15. Where the provision of public services is the responsibility of the National Assembly for Wales, only that Assembly may make regulations under clause 15. In Northern Ireland, the power to make regulations under clause 15 is exercisable by such Northern Ireland department as may be designated for that purpose by order made by the Office of the First Minister and deputy First Minister. Where this power is not exercisable by the Northern Ireland Assembly or a Northern Ireland Department, the Secretary of State may make regulations.

106     Subsection (2) clarifies the meaning in subsection (1) of the provision of Welsh public services as those which the National Assembly for Wales has functions and of Northern Irish public services in so far as the regulations relate to the provision of services in the transferred field.

107     Regulations made under clause 15 must be approved by a resolution in both Houses of Parliament in the case of regulations made by the Secretary of State; and in the case of regulations in Northern Ireland, they must be laid before and approved by the Northern Ireland Assembly (subsection (3)).

108     Under subsection (4), before any regulations are made there must be steps taken for ensuring that members of the public likely to be affected are informed and consulted on the proposal. Subsection (5) provides that this must include the reasons for the proposal and why existing provisions are not sufficient to make an order under legislation governing the particular service rather than relying on an order under clause 15 of the Identity Cards Bill.

109     Subsection (6) requires there to be consultation with interested parties, for example the providers of a public service, before any regulations are made under clause 15 if there is an equivalent requirement in other legislation governing that service to consult these interested parties.

Clause 17: Power to provide for checks on the Register

110     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.

111     Subsection (1) enables the Secretary of State to make regulations allowing the provision of information to a person providing a public service for which regulations under clause 15 have been made or in respect to which any other legislation makes it a condition to produce an ID card or any other evidence of registrable facts recorded on the Register. This must be for the purposes of ascertaining or verifying information of an individual applying for the public service.

112     Subsection (2) provides that regulations may specify the manner in which applications for checks of the Register are to be made, the persons and the circumstances in which the application may be made, the information that may be provided and the manner in which the provision of information is to be made.

113     Subsection (3) provides that the provision of information may be made dependent on the applicant registering particulars about himself, that the person and the applicant have been approved in the prescribed manner and the equipment is accredited. Clause 41(7) sets out in more detail what regulations for the approval of a person or of apparatus might include.

114     The regulations are subject to an affirmative resolution procedure (Subsection (4)). Before any draft regulations are laid before Parliament, the Secretary of State must take steps to ensure that members of the public in the United Kingdom are informed and consulted on any proposals (Subsection (5)).

115     Subsection (6) ensures that "enactment" for the purposes of this section includes an Act of the Scottish Parliament. This means the rules governing provision of information from the Register are uniform throughout the UK.

Clause 18: Prohibition on requirements to produce identity cards

116     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).

117     Subsection (1) makes it unlawful for any person to demand an ID card or demand the individual give authority for a check to be made on the Register under clause 14, as a condition of doing anything to an individual e.g. providing a service.

118     The exceptions to this are set out in Subsection (2). These include where there is a specific requirement for a check on an individual's ID card or against the Register under clause 15 or in accordance with provisions under another enactment; where the organisation allows for reasonable alternative methods of proving identity; or when it is compulsory for that individual to register.

119     Subsection (3) makes clear that this prohibition in subsection (1) may be enforced by the individual in the civil courts.

120     Subsection (4) ensures that Acts of the Scottish Parliament are included in the definition of an enactment within this section. Therefore if the Scottish Parliament decided to make it a requirement under their legislation to use the identity cards scheme as a condition of the provision of a service, it would not be prohibited under this clause.

Other allowed uses of registered information

Clause 19: Use for purposes of public authorities etc.

121     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).

122     Subsection (2) provides that information may be provided without consent of the individual to specified national security and intelligence agencies for purposes connected with any of their functions, for example, the Security Service would be able to be provided with information for purposes connected with the protection of national security, the support of law enforcement agencies in the prevention and detection of serious crime and to safeguard the economic well-being of the United Kingdom, which are their statutory functions as set out in the Security Services Act 1989.

123     Subsection (3) provides a power to provide information not specified within paragraph 9 of Schedule 1 (Records of provision of information) to a chief officer of police, for national security, the prevention or detection of crime or for other purposes as may be specified by order. Paragraph 9 of Schedule 1 records the provision of information from a person's Register entry as opposed to the "static" information held on the Register, such as place and date of birth.

124     A similar power is provided in subsection (4) for the provision of information without consent to the Commissioners of Her Majesty's Revenue & Customs, for national security, the prevention and detection of crime, national insurance contributions and the other purposes connected with the Commissioners set out in Subsection (4) except information falling within paragraph 9 of Schedule 1.

125     Where information does not fall within paragraph 9 of Schedule 1, provision of that information is permitted if it is made to a prescribed government department or a Northern Ireland department in order to carry out prescribed functions of that department or of the Minister in charge of that department. (subsection (5)). This allows for the provision of information without consent to other parts of government or Northern Ireland departments, e.g. to the Department for Work and Pensions for investigation of social security fraud or to the Department for Social Development in Northern Ireland in connection with social security benefits or national insurance numbers. Regulations allowing information to be provided under this power will be subject to the negative resolution procedure.

126     Subsection (6) sets out for what purposes information may be provided without consent to a designated documents authority that issues documents designated under clause 4.

127     Subsection (7) limits the Secretary of State's powers to authorise provision of information by subordinate legislation under this clause to circumstances where provision is necessary in the public interest, as defined in Clause 1 (4).

128     Subsection (8) defines terms used in clause 19 in particular exactly who is covered by the term "chief officer of police".

129     "Crime" is defined in clause 43(1) with reference to the Regulation of Investigatory Powers Act 2000 which defines "crime" as "conduct which constitutes one or more criminal offences or is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom would constitute one or more criminal offences".

130     "Detection" is defined in clause 43(1) and (9) with reference to the Regulation of Investigatory Powers Act which defines "detecting crime" as including "(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed".

131     Subsection (9) ensures that this clause does not restrict any powers existing elsewhere to disclose information.

Clause 20: Further uses connected with the prevention and detection of crime

132     This clause sets out other circumstances in which information from the Register may be provided without consent of the registered person. Subsection (1) provides a power for this provision so long as it is authorised in this clause and clause 23 is complied with.

133     Subsection (2) sets out that where information is provided without consent for any of the purposes specified in sections 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (which include provisions for disclosing information for the purposes of criminal investigations or proceedings overseas), it is authorised under this clause but only subject to clause 23.

134     Subsection (3) allows the Secretary of State to prohibit the provision of information without consent for use in overseas proceedings (under the Anti-terrorism, Crime and Security Act 2001) as specified in section 18 of that Act (which allows the Secretary of State to give a direction that would prohibit the provision of information that could be used for the purposes of any overseas proceedings that would otherwise occur under section 17 of that Act e.g. the Secretary of State might do this if he considered that it would be more appropriate for these proceedings to be conducted in a court of the United Kingdom.

135     Provision of information falling within paragraph 9 of Schedule 1, which is the record of information provided from the Register, is authorised if it is to the persons listed in clause 19(3) to (5) and is for purposes connected with preventing or detecting serious crime or if it is authorised under clause 20(2) for use in overseas criminal investigations or proceedings, and is concerned with the prevention and detection of serious crime. This allows a higher threshold to apply where the information being disclosed relates to an individual's use of an ID card rather than static information about name, address etc.

136     "Serious crime" is defined in clause 43 with reference to the Regulation of Investigatory Powers Act which defines serious crime as a crime that "(a) involves the use of violence, results in substantial financial gain or is conducted by a large number of persons in pursuit of a common purpose, or (b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more".

Clause 21: Use for correcting inaccurate or incomplete information

137     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.

138     Subsection (1) sets out the circumstances in which information may be provided under this clause. Subsection (2) provides a power to provide to the person providing the information any inconsistencies between it and the information recorded on the Register, provided that clause 23 is complied with (Subsection (3)).

139     Subsection (4) defines what is meant by providing information about an individual for verification purposes.

Clause 22: Power to authorise other uses of information

140     This clause provides (Subsection (1)) that where there is no authorisation under clauses 19 to 21 the Secretary of State may provide information without consent where an order has been made specifying or describing the information, to a public authority so specified or described, for purposes so specified or described and any requirements under clause 23 are complied with. The Secretary of State's power to authorise the provision of such information is restricted to circumstances where the provision is necessary in the public interest (Subsection (2)). This order (Subsection (3)) is subject to an affirmative resolution procedure. The information which can be provided is limited to information not falling within paragraph 9 of Schedule 1 (the audit trail information).

Clause 23: Rules for using information without individual's consent

141     Subsection (1) provides that provision of information in paragraph 2 of schedule 1 (photograph, signature, fingerprints or other biometric information) under clauses 19 to 22 may only be authorised where the Secretary of State is satisfied that it was not reasonably practicable for the person to have obtained the information by another means. For example, if fingerprint information is recorded on the Register, the police would first have to search their own fingerprint records before requesting information to be provided from the Register.

142     Subsections (2) to (4) allow the Secretary of State to make regulations imposing requirements such as specifying the person or persons who may make any request for information and how it is to be made and authorised before any information is provided under clauses 19 to 22.

143     Subsection (5) allows the Secretary of State to make regulations setting out the rank office or position of people who would be authorised to receive information on behalf of those persons listed in clauses 19 to 22. For example, a police officer of a specified rank may be authorised to be provided with information on behalf of a chief officer of police. Regulations under clause 23 will be subject to affirmative resolution procedure (Subsection (6)).

Supervision of operation of Act

Clause 24: Appointment of National Identity Scheme Commissioner

144     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.

145     The Secretary of State is under the duty to appoint a National Identity Scheme Commissioner under subsection (1). Subsection (2) sets out the functions of the Commissioner. Subsection (3) sets out the matters which will not be part of the Commissioner's functions such as appeals against civil penalties, which will be dealt with by the civil courts, criminal offences which will be dealt with by the criminal courts, and the verification powers for passports under clause 39. The provision of information to the intelligence and security agencies would also not fall within the remit of the Commissioner but would be under the jurisdiction of the Intelligence Services Commissioner as set out in clause 26.

146     It is the duty of every official in the Secretary of State's department to provide the information the Commissioner requires to carry out his functions (Subsection (4)).

147     Subsection (5) sets out that the Commissioner should hold office in accordance with the terms of his appointment and provisions should be made for him to be paid such allowances as the Treasury may determine out of money provided by Parliament.

148     Under Subsection (6) the Secretary of State is under a duty, after consultation with the Commissioner, and subject to the approval of the Treasury as to numbers, to provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions. The Commissioner will be a public authority for the purposes of the Freedom of Information Act 2000.

Clause 25: Reports by Commissioner

149     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.

150     Under subsection (3) the Secretary of State is under a duty to lay before Parliament every report received from the Commissioner. Where the publication of a particular matter in a report would be prejudicial to national security or the prevention and detection of crime, it may be removed from the report laid before Parliament. In those circumstances, in accordance with subsection (5), the Secretary of State would need to lay a statement before Parliament that a matter had been excluded.

Clause 26: Jurisdiction of Intelligence Services Commissioner and Tribunal

151     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

152     This clause creates new criminal offences related to possessing false identity documents. Subsections (1) and (2) set out the circumstances in which a person is guilty of an offence if he is in possession of a document which he knows or believes to be false or improperly obtained, or to relate to someone else. To be guilty of the offence the person must have the intention that the document be used for identity fraud.

153     Subsections (3) and (4) create a similar offence in relation to the possession of equipment which is designed or adapted for making false identity documents. Subsection (6) sets out the maximum penalties for such offences as being 10 years imprisonment or a fine or both.

154     Subsection (5) makes it an offence for a person to have in his possession, without reasonable excuse, a false or improperly obtained document, a document relating to someone else, or equipment used for making false identity documents. These offences apply irrespective of any intent to use the documents or equipment. Subsection (7) prescribes a maximum penalty of 2 years imprisonment, a fine or both.

155     Subsection (8) defines the meaning of false and improperly obtained for the purposes of this section.

156     Subsection (9) states that the definition of "false" in subsection (8)(a) does not apply on the application of this section in Scotland because Part 1 of the Forgery and Counterfeiting Act 1981 does not apply in Scotland.

157     Subsection (10) applies the definition of "identity document" in clause 28 for the purposes of these offences.

Clause 28: Identity documents for the purposes of s. 27

158     Subsection (1) defines what is meant by an "identity document" and includes an ID card as well as other identity documents. This list may be amended by an order subject to an affirmative resolution procedure (subsections (4) and (5)).

159     Subsection (2) defines what is meant by an "immigration document".

160     Subsection (3) defines what is meant by a "UK driving licence".

Clause 29: Unauthorised disclosure of information

161     This clause creates a new criminal offence of disclosure without lawful authority of information held on the National Identity Register.

162     Subsections (1) and (2) set out the circumstances under which a person is guilty of such an offence.

163     Subsection (3) defines what is meant by "lawful authority" for the purposes of this clause including if it is authorised by this legislation or required by a court order.

164     Subsection (4) states that a person has a defence if he can show that he believed, on reasonable grounds, that he had lawful authority to disclose the information.

165     Subsection (5) sets out the maximum penalty for the offence as 2 years imprisonment or a fine or both.

Clause 30: Providing false information

166     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.

167     For the purposes of this clause, false is defined in clause 43. Subsections (1) and (2) set out the circumstances under which a person is guilty of the offence if he knows or believes the information is false or is reckless as to whether or not it is false. Subsection (3) sets out the maximum penalty for the offence as 2 years imprisonment, a fine or both.

Clause 31: Tampering with the Register etc.

168     This clause creates an offence of tampering with the Register. Subsection (1) defines the offence as engaging in any conduct that causes an unauthorised modification of information in the Register. Subsection (2) defines the requisite intent for the offence as intending to cause a modification of information, or being reckless as to whether or not the conduct will cause such a modification. Subsection (5) defines an "unauthorised modification" as taking place if someone is not himself entitled to determine if the modification is made, or he does not have a consent to the modification from a person who is so entitled. Subsection (6) provides a defence where the maker of the unauthorised modification reasonably, albeit mistakenly believed he was authorised to make it. Subsection (9) provides that conduct includes acts and omissions, and modification includes a temporary modification.

169     Subsection (3) makes it clear that modification of information includes cases where someone's conduct contributes to the modification of information, or where it makes it more difficult or impossible for such information to be retrieved in a legible form, or where the conduct contributes to making the retrieval more difficult or impossible.

170     Subsection (4) makes it clear that it does not matter whether any or all of the relevant conduct took place in the United Kingdom or whether the person concerned was a British citizen or not.

171     Subsection (7) gives the maximum penalty for the offence as imprisonment for a term not exceeding ten years, or a fine, or both.

Clause 32: Consequential amendments relating to offences

172     Subsection (4) makes the offences under clauses 27 (5), 29 and 30 arrestable in Northern Ireland.

173     Subsection (1) extends the usual jurisdiction of the courts in England and Wales for the offences in clause 27. Subsection (5) extends the usual jurisdiction of the courts in Northern Ireland for the offences in clause 27.

174     Subsection (2) adds the false documents offence (clause 27) to section 31(3) of the Immigration and Asylum Act 1999 giving a specific defence for refugees with false documents. This is of particular relevance as those who destroy any false documents will commit an offence under section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

175     Subsection (3) adds the false documents offence (clause 27) to section 14(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This gives immigration officers power to arrest without warrant for the offence and ancillary powers to search for and seize documents.

Civil penalties

Clause 33: Imposition of civil penalties

176     This clause sets out the way in which civil penalties under the identity cards scheme will operate.

177     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 (subsection (3)).

178     The date by which the payment must be made cannot be less than 14 days after the notice is issued (subsection (4)).

179     The penalty imposed by this clause, must be paid in the manner described by the notice and if it is not paid, the amount is recoverable by the Secretary of State via the civil courts. When recovering the penalty no question may be raised as to whether the defaulter was liable to the penalty, whether the imposition of the penalty was unreasonable or as to the amount of the penalty. Those matters should be raised on an objection to the Secretary of State under clause 34 and/or an appeal to the civil courts under clause 35.

Clause 34: Objection to penalty

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

181     A recipient of a notice may give notice to the Secretary of State that he objects to the penalty. This must include what he objects to and why. This "notice of objection" must be made in the prescribed manner and before a date to be prescribed (subsections (1) and (2)). The grounds on which an objection can be made are that the person was not liable to it, that the circumstances of the contravention make the imposition of a penalty unreasonable, or that the amount of the penalty is too high.

182     If this procedure is complied with, the Secretary of State will determine whether or not to: cancel the penalty; reduce it; increase it; confirm it (subsection (3)). The Secretary of State must not enforce a penalty of which he has received a notice of objection, until he has considered the objection.

183     This notification of outcome must be given in the prescribed manner, by a prescribed date or if the objector agrees by the end of a longer period.

184     If, after consideration, the Secretary of State increases the penalty, a new notice must be issued under clause 33. If the penalty is reduced, the objector must be notified accordingly.

Clause 35: Appeals against penalties

185     This clause sets out the process of appealing against penalties. Under subsection (6) a person does not have to object to a penalty under clause 33 before making an appeal to the court under this clause.

186     The grounds of the appeal are set out in subsection (1). They are the same as the grounds for making an objection under clause 34. Subsection (2) ensures that there will be a time limit to any appeal.

187     The appeal will be a re-hearing of the decision of the Secretary of State to impose a penalty (subsection (4)). Under subsection (5) the court may consider all matters it considers relevant

188     The Court may decide to cancel the penalty, reduce the penalty or uphold the penalty under subsection (3).

189     Subsection (7) specifies which courts may hear an appeal.

Clause 36: Code of practice on penalties

190     This clause sets out the provisions relating to the code of practice on penalties.

191     The Secretary of State has the duty to issue a code of practice setting out the matters that will be considered when determining the amount of a civil penalty. He must have regard to the code when imposing a penalty or considering a notice of objection. A court must also have regard to the code when determining any appeal.

192     Before issuing the code, a draft must be laid before Parliament. It then comes into force as specified by order.

Fees and charges

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

193     This clause makes provision for the payment of fees.

194     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.

195     Subsection (2) allows regulations to be made allowing the payment of fees by instalments, for example schemes such as saving stamps.

196     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.

197     Subsection (4) means Treasury consent is required before regulations are made under subsection (1).

198     Subsection (5) allows for the fees for designated documents to cover the costs of dealing with matters under this Bill (i.e. the Register and ID cards) when those matters are dealt with in relation to applications for, and the issuing of, designated documents. For example, charges for residence permits could be made using existing powers, and include the costs associated with the identity cards scheme.

199     Subsection (6) gives the Secretary of State the power to raise fees over a period which he thinks appropriate, which could be any time after the commencement of the power to charge including in advance of the introduction of identity cards.

Clause 38: Amendment of Consular Fees Act

200     Clause 38 amends Section 1(4) of the Consular Fees Act 1980, to allow flexibility in the setting of fees for the carrying out of consular functions which includes the setting of passport fees. The amendment provides a power to set different levels of fees for different cases and to make exceptions for different types of case including an exemption from any fee. This would enable the cross-subsidy of passport fees between fees charged to different applicants. For example, this provision will provide a statutory basis for 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.

201     Clause 45(5) provides for this clause to come into force two months after this Bill is passed. The fee setting powers in this amended clause could be applied at any period after that time including in advance of the introduction of identity cards.

Provisions relating to passports

Clause 39: Verifying information provided with passport applications etc.

202     This clause deals with the provisions necessary to permit data to be shared for the purposes of verifying information provided in relation to an application for a passport or the withdrawal of a passport. It mirrors the provision in respect of ID cards made in clause 11.

203     Subsection (1) places a duty on a person to provide information to the Secretary of State for the purposes of verifying information related to an application for a passport and/or a decision to withdraw an individual's passport.

204     This obligation is mandatory (subsection (2)). Subsection (2) also enables the information to be required within a specified timescale.

205     Subsection (3) sets out that the requirement may be imposed on a Minister, government department, Northern Ireland department, National Assembly for Wales or any person specified for the purposes in an order made by the Secretary of State.

206 Subsection (4) clarifies that the persons who may be specified in an order includes anyone carrying out statutory functions that are carried out on behalf of the Crown.

207     Subsection (5) provides that there is a duty on the individual to provide the information and this may be enforced via civil court proceedings. In the case of public authorities, normal public law remedies such as judicial review will apply.

208     Subsection (6) enables the Secretary of State to pay those whom he is requiring information to be provided from.

209     The order making provision to require information is subject to the affirmative resolution procedure (subsection (7)).

Clause 40: Amendments of legislation relating to passports

210     Clause 40 makes a series of amendments to existing legislation where currently passports are mentioned to enable identity cards to be used in circumstances where a passport may currently be required.

211     This clause also amends legislation where a person is required to surrender his passport and has an ID card that is valid for travel. The amendment to the Football Spectators Act 1989 by subsections (1) and (2) ensures that a requirement to surrender a passport includes a requirement to surrender an ID card able to be used as a travel document.

212     Subsections (3) and (4) make a similar amendment to the Criminal Justice and Police Act 2001 where courts can issue travel restriction orders in cases of serious drug offenders leaving prison.

213     Subsection (5) allows amendments to be made to existing legislation, so that where currently they include a reference to a passport, a reference to an ID card, or to an ID card of a description not already mentioned in that enactment or provision, may be added. This is subject to the negative resolution procedure as far as subordinate legislation is concerned and the affirmative resolution procedure if primary legislation is amended.

214     This power is necessary to enable the ID card, as a highly reliable form of identity, to be used in the widest range of circumstances and to facilitate its use as a travel document.

Supplemental

Clause 41: Orders and regulations

215     This clause provides how orders and regulations are to be made. This will be through a negative resolution procedure except in cases specifically provided for in the Bill.

216     Subsection (4) enables provisions to differ for different cases, with exemptions and exceptions. For example, regulations may allow different application procedures for groups such as the very elderly or those with mental health problems.

217     Subsection (5) provides that if in the future the age at which an entitlement to registration arises (Section 2(2)) is modified so that individuals under the age of 16 may register, then any obligations under this Act (for example to notify changes under Section 12) can fall on the child's parents or other responsible adult.

218     Subsection (6) is necessary so that where amendments are made to Schedule 1, consequential changes may be made to where references are made in the Act to that part of the Schedule and to clauses 14(2) and 14(3).

219     Subsection (7) sets out in more detail what the power for the approval of a person or of apparatus (the accreditation system) provides. This includes the granting of an approval subject to specific conditions (e.g. that the organisation maintains an agreed level of security) which may be modified as well as the suspension or withdrawal of an approval (e.g. where the organisation has misused the verification service).

Clause 43: General interpretation

220     This clause provides for interpretation of defined terms in the Bill. This includes the definition of biometric data in relation to an individual as meaning data about his external characteristics including in particular the features of an iris or other part of the eye.

221     Subsection (2) defines what is meant by the provision of a public service. This is broadly defined and is not restricted to what might be commonly understood as "public services" such as the NHS and could include the granting of a firearms certificate or the requirement to notify changes of address imposed on certain sex offenders.

Clause 44: Scotland

222     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.

223     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.

224     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).

Clause 45: Short title, repeals, commencement and extent

225     This clause allows the preceding provisions of the Bill to be brought into force by order made by the Secretary of State. Different parts of the Bill may come into force on different dates.

226     Subsection (5) provides that clauses 38 and 39 (amendments relating to passport fees and data-sharing powers for passport applications) shall come into force two months after the Act is passed.

227     Subsection (4) clarifies that this includes a power to enable roll-out of the scheme to be undertaken by geographical areas; and that a trial may be undertaken in relation to particular areas or persons. This subsection includes a power to make transitional provisions for between the trial stage and the full commencement of the scheme.

228     Subsection (6) provides an extension power so that clauses may be applied to the Channel Islands or to the Isle of Man via Order in Council.

229     The Bill extends to Northern Ireland (Subsection (8)).

Schedule 1: Information that may be recorded in Register

230     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; and

• records of provision of information - how and when any information from an entry was provided to any person or body.

Schedule 2: Repeals

231     Repeals can be found in Schedule 2 of the Bill.

FINANCIAL EFFECTS OF THE BILL

232     The initial start up costs will be met from existing Departmental budgets or charging.

233     Costs will build on the development of biometric passports which will be essential for international travel and hence incurred in any event. At our current best estimates, £584 million will be the annual cost of issuing biometric passports to UK nationals ¹. The indicative charge for a combined package of 10 year passport and ID card would be £93. ²

¹ At 2005/06 prices and including allowances for contingency, optimism bias and non-recoverable VAT

² As note 1 above.

234     It is intended that, when the scheme is established, overall running costs will be covered by a combination of charges for applications, issue of cards, identity verification services provided by the scheme and for related services such as accreditation.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

235     A new Executive Agency, incorporating the functions of the United Kingdom Passport Service (UKPS) and working closely in conjunction with the Immigration and Nationality Directorate (IND) of the Home Office in respect of foreign nationals will be set up to administer the scheme. A National Identity Scheme Commissioner will be responsible for the oversight of the whole scheme.

236     In 2003-04, UKPS had 2905 staff. It is likely that there will be an additional staffing requirement for the new Executive Agency. The programme of feasibility studies will contribute to the evaluation of the requirements for additional staffing. No decisions have been taken as to whether any additional manpower will fall within the public sector.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

237     A regulatory impact assessment has been published alongside the Bill.

238     The Bill as drafted places no burdens on business, charities or voluntary bodies. There are no provisions in the Bill which will allow the Government to require business, charities or voluntary bodes to make identity checks using the identity cards scheme. The required identity checks power relates only to public services.

239     Should the Government propose any new requirements through other legislative vehicles for business, charities or voluntary bodies to require identity checks or to incorporate the identity cards scheme within existing requirements to undertake checks, the Government will produce and publish regulatory impact assessments relevant to the sector(s) affected. An example of where this has already been done is the RIA produced when revised regulations on identity checks for foreign workers were published earlier this year.

240     The costs of the scheme are outlined in paragraphs 228 to 232 of the Explanatory Notes. In general the benefits of the scheme fall into the following categories:

• More efficient processes;

• Removing duplication of functions;

• Reduced fraud;

• More convenient access to services;

• Improved enforcement of immigration controls;

• Enhancing the UK's ability to counter terrorism and organised crime.

EUROPEAN CONVENTION ON HUMAN RIGHTS

241     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. The Secretary of State has made the following statement:

     In my view the provisions of the Identity Cards Bill are compatible with the      Convention rights.

An Identity Card scheme

242     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 concept of an ID cards scheme is therefore a well established aspect of European life and could not in principle be regarded as incompatible with the ECHR.

243     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

244     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 Bill.

Retention and Provision of Information

245     Schedule 1 of the Bill lists the information which may be held on the Register. It includes identity information such as name, photograph and biometrics.

246     The Bill 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 Bill. 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.

247     The order making powers under which the Secretary of State may specify additional public authorities to whom information may be provided can only be exercised consistently with the statutory purposes set out in clause 1 and do not permit disclosure of the audit trail information.

248     Outside bodies will not be able to access the Register and those who are employed to access it will face severe penalties if information is disclosed inappropriately.

Compulsion

249     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.

250     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.

251     The Bill 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 Bill will be obliged to exercise their functions compatibly with the Convention rights by virtue of section 6 of the Human Rights Act.

COMMENCEMENT DATE

252     At 2005/06 prices and including allowances for contingency, optimism bias and non-recoverable VAT. The estimate of the indicative charge published in the previous RIA was derived from a unit cost of £88 which was at 2004/05 prices and excluded allowances for contingency, optimum bias and non-recoverable VAT. Commencement of clauses 38 and 39 relating to passports is two months after the Bill is passed. Apart from commencement of the false identity document offences at clauses 27 and 28 which would be sooner, the remainder of the Bill will be commenced in time for the issue of the first ID cards starting in 2008. There may also be different dates when parts of the Bill come into force so that trials of the scheme and an incremental roll-out may take place.

Related:
UK ID Cards Home Page
ID Cards Home Page
UK ID Card Bill reintroduced - Business as Usual
UK Identity Cards Bill (take deux)