2006 Chapter 15

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These notes refer to the Identity Cards Act 2006 (c. 15) which received Royal Assent on 30 March 2006

IDENTITY CARDS ACT 2006

EXPLANATORY NOTES

INTRODUCTION

1     These explanatory notes relate to the Identity Cards Act 2006, which received Royal Assent on 30^th March 2006. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. Where a section, sub-section or paragraph 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^st January 2003. A summary of findings from the consultation exercise was published on 11^th November 2003, Identity Cards: a Summary of Findings from the Consultation on Entitlement Cards and Identity Fraud (Cm 6019). A detailed response by the Government 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 ID 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^th April 2004 (Cm 6178). This gave effect to the Government's proposals for the introduction of ID cards throughout the UK, as set out in Identity Cards: the next steps. Consultation on the draft legislation ended on 20^th July 2004.

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

6     In November 2004 the first 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^th April 2005, for the General Election and the Bill fell. The second Bill, which resulted in the Act, was very similar to the initial Bill.

7     The Act provides the legal framework required to establish a National Identity Register, and to issue ID cards to those on the Register. Its main features are:

• setting out the statutory purposes of the National Identity Register;

• setting up the National Identity Register;

• establishing powers to issue ID cards;

• establishing powers to designate existing documents

(i)     as documents together with which ID card will be issued (for example British passports) or

(ii)     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 may be held and establishing safeguards to protect individuals' 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 certain public authorities specified in the Act (such as the police), or to be prescribed in regulations (such as government departments), could be provided, without an individual's consent, with information held on that individual's entry on the Register;

• providing for a National Identity Scheme Commissioner to have oversight of the scheme and to report to the Secretary of State and for these reports to be laid before Parliament;

• creating new criminal offences relating to misuse of ID cards and other identity fraud issues;

• including powers to link future access to specified public services to production of an ID card and or a check on the Register.

8     In addition, the Act includes provisions relating to passports:

• to amend the Consular Fees Act 1980 (c.23) in order to create a general power which will allow cross subsidisation of fees for different types of passports and passport services. This will provide a statutory basis, for example, to the issue of free passports which has already been introduced for those born on or before 2 September 1929 to be subsidised by charges made for other passports;

• to ensure biographical checks can be made by the Secretary of State (to be exercised by the Identity and Passport Service) for the purpose of verifying information supplied by applicants for British passports.

TERRITORIAL EXTENT

9     The Identity Cards Act applies to the whole of the United Kingdom. The ID 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 Act 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 those administrations are responsible.

11     Any move for production of an ID card to be a condition of a public service which is within the legislative competence of the Scottish Parliament would require authorisation by an Act of the Scottish Parliament.

12     The Act 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 Act contains 44 Sections and two Schedules and deals with twelve main topics -

• Registration

• ID cards

• Maintaining accuracy of Register etc.

• Provision of information from Register for verification purposes etc.

• Required identity checks

• Other purposes for which registered information can be provided

• Supervision of operation of Act

• Offences

• Civil penalties

• Fees and charges

• Provisions relating to passports

• Supplemental

COMMENTARY ON SECTIONS

Registration

Section 1: The National Identity Register

15     This section required the Secretary of State to establish the National Identity Register for the ID 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 to persons who reasonably require proof;

(ii)     provision of a secure and reliable 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;

• Enforcement of 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 include action to prevent terrorism. Crime also includes "identity fraud and theft".

19     Subsections (5) to (8) give further explanation about the personal information which may be recorded on the Register and which is central to the scheme. This information is known as the "registrable facts" and includes name, date and place of birth, nationality, gender, immigration status, address, external characteristics of a person that are capable of being used for identification purposes (e.g. biometric information), and information included at a person's request. These "registrable facts" may only be amended by further primary legislation and thereby limit the scope of the information that may be held under the scheme.

20     Subsection (6) excludes any identification number being recorded that would tend to reveal sensitive personal data as defined in the Data Protection Act 1998. Section 2 of that Act provides that sensitive personal data includes information about matters such as racial or ethnic origin, political opinion, sexual life and the commission of offences. So, for example, a Police National Computer (PNC) reference number would tend to reveal whether an individual has a criminal record and would thus be excluded by subsection (6).

21     Biometric information is defined in section 42(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, section 3 and Schedule 1.

Section 2: Individuals entered in Register

22     This section 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.

23     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 because although the ID card will be for all UK residents, it may be in the future that the Government would want, through regulations, to allow, for example, British citizens resident overseas to register before returning to live in the UK.

24     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 (intended to be 3 months) or if they are residing despite having no entitlement to remain (for example, individuals who are seeking asylum in the UK).

25     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)).

26     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.

27     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, such as driver number or national insurance number, may also be recorded on the Register as provided for in Schedule 1, paragraph 4.

28     Subsections (6) and (7) provide that the Secretary of State may modify the age of entry on the Register by order subject to the affirmative resolution procedure, that is to say, requiring approval in both the House of Commons and the House of Lords.

Section 3: Information Recorded in Register

29     Section 3 sets out the information that may be recorded in the Register.

30     Subsection (1) provides that information may only be entered in the Register or remain on the Register if it is consistent with the statutory purposes for it to be recorded

31     Subsection (2) is an exhaustive list of four categories of information which may be held on the Register. The first is the information listed in Schedule 1 (as to which see paragraph [35] below). The second is technical information required for the administration of the Register. The third is technical information required for the issue and cancellation of ID cards. The fourth is additional information about an individual which has been recorded on the Register at his request in accordance with subsection (3).

32     Subsection (3) 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.

33     Subsection (4) provides that an individual's entry on the Register must include information falling within paragraph 9 of Schedule 1, about occasions on which information has been provided from his entry without his consent.

34     Subsection (5) 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 identity documents offences in section 25 from applying.

35     Schedule 1 may be amended by secondary legislation following a resolution in both Houses of Parliament (subsections (6)-(8)) to add to the list of information that may be recorded on the Register. However, because of subsection (1), 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 section 1(3).

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

36     Section 4 provides for the Secretary of State to have the power by order to designate documents for the purposes of the Act, for example, passports. Any orders will be subject to the affirmative resolution procedure. These documents are referred to in the Act as "designated documents". Persons responsible for issuing designated documents are referred to in the Act as "designated documents authorities". If a document is designated, anyone applying for one will simultaneously need to apply to be entered in the Register, unless he is already so registered (see section 5(2)). He would also need to apply for an ID Card unless he already has one. There is, however, an exception to the requirement to apply for an ID Card where the designated document being applied for is a British passport and the application is made before 1^st January 2010 (see subsection 6(7)).

37     Subsection (2) provides that the Secretary of State may only designate documents which are issued by the persons set out in subsection (3), namely a Minister of the Crown, a government department, a Northern Ireland department, the National Assembly for Wales, or any other person who carries out statutory functions on behalf of the Crown.

Section 5: Applications relating to entries in Register

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

39     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.

40     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 (section 42(4)).

41     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.

42     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.

43     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.

44     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 an agreed place and time (or in the absence of agreement, 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. "Biometric information" and "fingerprint" are defined in section 42(1).

45     Subsection (6) ensures that information may not be required by regulations under this section unless it is for the statutory purposes of the scheme as set out in section 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.

46     Subsection (7) provides that on the first occasion that the Secretary of State makes regulations under Section 5, these regulations must be laid in draft before Parliament and approved by the affirmative resolution procedure. In the case of any subsequent regulations, the negative resolution procedure will apply.

ID cards

Section 6: Issue etc. of ID cards

47     This section sets out the procedure for issuing ID cards.

48     The ID 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 (intended to be 3 months). "ID cards" is defined under this section.

49     Subsections (1) and (2) explain that an ID card is a card which holds registrable facts as recorded on the National Identity Register and data enabling the card to be used for verifying information on the Register, for example, a personal identification number ("PIN"). 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, subject to the exception in Section 6 (7)). Section 42(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.

50     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.

51     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 or residing outside the UK but travelling regularly to work in the UK and who therefore may need proof of identity.

52     Subsection (6) provides that an ID card will be issued only 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.

53     Under subsection (7) an application for a designated document must include an application for an ID card in the manner prescribed unless the application is being made before 1^st January 2010, is for a British passport and the application contains a declaration that the individual does not wish to be issued with an ID Card. Individuals applying for British passport can therefore choose to 'opt out' of being issued with an ID Card but only up until 1^st January 2010. The 'opt out' does not apply to the Register. All individuals who apply for a passport will be required to be entered onto the Register once the passport becomes a designated document.

54     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.

55     In the case of a designated documents authority, regulations may be made providing that an application for an ID card may be made separately from any application for the designated document. This allows a designated documents authority to issue a "standalone" ID card that is not part of and is not issued with a designated document.

56     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 both Houses of Parliament via the affirmative resolution procedure (subsection (9)).

57     None of the provisions in this or any other section 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.

Section 7: ID cards for those compulsorily registered

58     This section provides for the issue to and renewal of cards for those individuals who are required, by virtue of future primary legislation, to be entered into the Register. This is in accordance with the definition in Section 42 of "subject to compulsory registration", namely "required to be entered in the Register in accordance with an obligation imposed by an Act of Parliament passed after the passing of this Act".

59     Subsection (2) makes it a requirement for such an individual whose card will expire in the prescribed period or who does not hold a valid card to apply for an ID card within the prescribed period.

60     Subsection (3) gives the Secretary of State the power to require an individual applying for an ID card under this section 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 an agreed place and time, or in the absence of an agreement at a specified place and time, the recording of biometric information, being photographed and providing such other information as may be required.

61     An individual who fails to apply for a card under this section or to provide the information requested to verify an application is liable to a civil penalty not exceeding £1,000 (subsection (5)).