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Balance, scrutiny and identity cards in the UK

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Act (see Whitley et al. 2007) has provided a unique insight into ongoing debates about political theory and the legislative process. In particular, our research into the identity cards scheme raises important questions about the relationship between
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  cjm   no. 68 Summer 2007 29 Balance, scrutiny and identity cardsin the UK  Cheryl A Edwardes, Ian Hosein and Edgar A Whitley contend thatthe government’s argument that ID cards are for the ‘greater good’needs to be scrutinized and balanced against the needs ofthe individual. O ur often bruising experiences researchingthe introduction of the UK Identity CardsAct (see Whitley et al. 2007) has provideda unique insight into ongoing debates about politicaltheory and the legislative process. In particular,our research into the identity cards scheme raisesimportant questions about the relationship betweenbalance and scrutiny which we explore in thisarticle.Writing in 1690, the political philosopherJohn Locke suggested that ʻin well–orderedcommon–wealths, where the good of the whole isso considered … the legislative power is put into thehands of divers persons … [who] have by themselves… a power to make laws, which when they havedone, being separated again, they are themselvessubject to the laws they have made; which is a newand near tie upon them, to take care, that they makethem for the public goodʼ (Locke 1690). He wasarguing that when government acts in the interestsof ʻthe public goodʼ, effective mechanisms forindependent scrutiny should be put in place toensure that its powers are used with caution andconsideration.Notable philosophers since Locke have echoedthese sentiments. Jean-Jacques Rousseau envisageda legislator with a ʻgreat soulʼ proposing lawsconducive to the common good and believed purityof motive was only guaranteed if the adoption of the proposed laws depended upon the approval of those to be bound by them (Rousseau 1762). JohnStuart Mill, considering representative governmentin 1861, paired a small body of crown–appointedmen legislating for the common good with ʻskilledlabour and special study and experienceʼ, with abody publicly elected to “watch and control thegovernment [and] throw the light of publicity on itsacts” (Mill 1861).Almost a century later, Karl Popper advocatedthe establishment of a group of social engineersmandated by a universal ʻagreement aboutexisting evils and the means of combating themʼ toʻincrementally improve societyʼ. These engineerswould have no need for the use of ʻpassion andviolence in executingʼ their social reforms (Popper1945).These thinkers agree that political actions shouldbe motivated by the common good and agree uponthe necessity of ensuring that actions taken in thename of the common good are just that, typically bysome form of independent scrutiny. All, however,dene the common good differently. Locke believesit is safety and physical well–being, for Rousseauit is liberty, Mill thinks it is happiness and Popperthe eradication of social ills. The diversity of theseinterpretations and denitions of the ʻcommon goodʼemphasises that the common good is a notion thatcan be easily adopted by governments as they justifytheir own political or ideological aimsʼ. Identity cards and the commongood The build up to the introduction of identity cardsin the UK has been focused on the common good.Concerns about civil liberties and older notionsof British values and culture were set aside bygovernment ministers, as they advanced the conceptof the common good. On the day the Identity CardsBill was given its second reading in Parliament, thethen new Home Secretary, Charles Clarke, wrotepassionately in the Times, saying:ʻI claim that the ID Cards Bill that I amintroducing today is a profoundly civil libertarianmeasure because it promotes the most fundamentalcivil liberty in our society, which is the right to livefree from crime and fearʻ (Clarke 2004).This view relies heavily upon communitarianphilosophy and implicitly moves the debate fromscrutiny to one of balance. Its leading thinker isAmitai Etzioni who, in his inuential book, The Limits of Privacy (1999) argued that we must heedthe needs of the many instead of over-emphasisingthe interests of the few.ʼAlthough we cherish privacy in a free society,we also value other goods. (...) To begin a newdialogue about privacy, I [ask] if you would liketo know whether the person entrusted with yourchild care is a convicted child molester. I furtherask: Would you want to know whether the staff of anursing home in which your mother now lives hascriminal records that include abusing the elderly?(…) Addressing such concerns raises the questionof if and when we are justied in implementingmeasures that diminish privacy in the service of thecommon good.ʼIn calling for ʻbalanceʼ and the ʻcommongoodʼ politicians believe that their ideas are rmly Continued on next page  30   CENTRE   FOR   CRIME   AND    JUSTICE   STUDIES founded in political theory and that they also have the benetof a monopoly on the legislative process. Although such aposition might imply that balance is distinct from scrutiny,even Etzioni recognised that any balancing scheme must becarefully regulated. As a result he qualies the ʻbalancingactʼ and demands that the need for intervention be properlydocumented, that non–infringing alternatives be considered, theeffect of any intervention is minimised and that undesirable sideeffects are properly managed.In the case of the Identity Cards Scheme the Governmenthas shown little restraint in its policy and technology design.For instance, the purpose of the Scheme continually shiftedas the government moved from preventing benet fraud, totackling terrorism, then to preventing identity fraud, withoutever fully understanding the nature of these problems to beginwith. Moreover, the most invasive design was chosen: underthe Scheme, all UK residents and citizens will be ngerprinted,and these ngerprints will be available for comparison withthose left at scenes of crime (Blair 2007). Balance and Scrutiny? Whilst the arguments for balance and the ʻcommon goodʼ runthroughout the Scheme, questions of scrutiny are less clear.Indeed a policy process that resulted in a scheme of this sortleads us to doubt whether Parliament was truly able to scrutiniseit in the rst place. Moreover, recent events associated with theUK Identity Cards Scheme suggest that while Government ishappy for the Scheme to have a potentially large impact on thescrutiny of the actions of individuals, it is less open to the ideaof scrutiny of the Scheme itself.Since 2000, ʻGateway Reviewsʼ undertaken by the Ofce of Government Commerce (OGC) have been set up to ensure thatthe procurement of large government IT projects deliver valuefor money. These independent reviews are intended to checkthat the plans for a project are sufciently developed. In thecase of the Identity Cards Scheme, the Government repeatedlyasserted that the Scheme had passed its various GatewayReviews but refused to disclose the contents of the reviews.The Information Commissioner, who regulates the Freedomof Information Act (FoIA), disagreed with the Governmentand concluded that, especially in the case of such an importantscheme, the Gateway Reviews should be made public. Ratherthan accepting this decision, the government took the case toan Information Tribunal. In May 2007 the Tribunal concurredwith the Commissioner. However, at the time of writing, theOGC had still not disclosed the content of these reviews. OnMay 30 2007 the OGC announced that they would appeal thecase to the High Court to prevent disclosure. Two days laterComputer Weekly, one of the leading newspapers for the ITindustry, uncovered orders to OGC staff to destroy internalreports ʻand all supporting documentsʼ (Collins 2007). TheTories and Liberal Democrats condemned this move as anattempt to further hide the details of the ID scheme, and othercontentious IT projects.The Government has argued that there were legitimatereasons behind their actions suggesting that the effectiveness of the Gateway Reviews would be diminished if participants knewthat they might be made public at some later date. However,at the Information Tribunal, we learned that the Governmentbriefed participants of the Gateway Reviews saying that therewas ʻlittle risk of [Gateway Reviews] being disclosed underFoIA or other meansʼ, i.e. the normal expectation was thatindependent scrutiny of this aspect was unlikely to happen.This is despite the fact that Freedom of Information legislationis intended to provide a mechanism for such scrutiny to takeplace if required; instead the government insists on keeping theresults hidden.Perhaps we are seeing a massive shift in the view of decision–makers who not only believe that the balance in favourof the common good must be served, but that this must be donewith minimal scrutiny. Such a trend appears not to be limitedto the UK as the US Secretary of Homeland Security recentlypresented a similar view, when he tried to convince the EuropeanParliament that it should stop interfering with US anti–terrorismpolicy and permit the US to accumulate travellersʼ data fromEU sources with limited oversight:ʼYou must ask yourself this question—whether you wouldbe satised to be constrained by slow–moving processes if theconsequence would be to allow an attack to go forward thatwould kill thousands of people or perhaps millions of people,including oneʼs own childrenʼ.The arguments made by authors from Locke onwards involvechecks and balances; yes there is the common good that mustbe balanced against the rights of the individual but in addition,claims made on behalf of the common good must be subject toindependent scrutiny. In the case of the ID Cards Scheme thisappears not to be happening.For more information about the LSE Identity Project, pleasevisit our website http://identityproject.lse.ac.uk. Cheryl A. Edwardes ,  Ian Hosein and   Edgar A. Whitley are part of the Information Systems and Innovation Group, Department of Management, London School of Economics and PoliticalScience. http://is.lse.ac.uk. References Blair, T. (2007) ʻPMʼs response to ID cards petition,ʼ 19February 2007. Available at http://www.pm.gov.uk/output/Page10987.asp.Clarke, C. (2004) ʻID cards defend the ultimate civil liberty,ʼ The Times , 20 December, 2004.Collins, T. (2007) ʻCivil servants told to destroy reports on riskyIT projectsʼ, Computer Weekly , 1 June, 2007.Etzioni, A. (1999)ʻ The limits of privacy ʼ, Basic Books: NewYork.Locke, J. (1690)ʼ Second treatise on Civil Governmentʼ .Mill, J. S. (1861) ʻ  Representative Governmentʼ .Popper, K. R. (1945) ʻ The open society and its enemies : Volume1 The spell of Platoʼ .Rousseau, J-J. (1762) ʻ The social contract or principles of  political right  ʼ.Whitley, E. A., Hosein, I. R., Angell, I. O. and Davies, S. (2007)ʻReections on the academic policy analysis process and theUK Identity Cards Scheme,ʼ The information society , 23, 1,51-58.
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