Human rights legal challenge threat to Scotland's plans for "through the back door" identity database

The Open Rights Group (ORG) is concerned that the plans to open the country's NHS register to hundreds of public bodies, including HMRC could breach human rights and data protection laws.

ORG which has already taken some legal advice over the plans, argues that the Scottish Government's consultation does not provide a full picture of the implications to all Scots and that it would create a national identity database "through the back door".

It argues that the proposals appear "very similar" to the plans for a national ID system that the last Labour government tried to introduce at the UK level.

These were rejected, but the ORG says it is concerned that Scottish citizens will end up with such an ID system without any appropriate public debate.

It says the process was created through a weak consultation and that any unique citizen reference number should be subject to proper legislation to ensure full parliamentary scrutiny.

"The consultation is so bad that the Information Commissioner for Scotland has pointed out that it may be illegal in its current form," said the ORG.

It's experts argue that to comply with Article 8 of the Human Rights Act there is a need for the Registrar General to demonstrate that the compilation of a population register is "necessary" in terms of a pressing social need. This is required to ensure the processing of personal data in the Register is lawful and "necessary" in terms of the Data Protection Act.

Critics say the introduction of a "unique citizen reference number" amounts to the introduction of a national identity database.

The Information Commissioner's Office has already said that the introduction of the system is at risk of breaching data protection laws.

In its submission to the consultation the ICO said: "Whilst the ICO are neither for nor against the creation of a national identity number per se, we do advocate against the creeping use of such unique identifiers to the extent that they could become the national identity number by default."

The Scottish Government, says its plans to update the National Health Service Central Register (NHSCR) will help in collating population statistics as well as making it easier for agencies to share information about missing children.

It will also help trace "foreign individuals" who received NHS treatment in Scotland and left the country with outstanding bills and help the taxman identify who should pay new income tax rates in Scotland.

Deputy First Minister John Swinney has accused critics of "scaremongering" about the impact of plans to expand the NHSCR which would let 120 public bodies - including police, prison, national security, visas and immigration - gain access to certain information from it.

The current NHSCR provide details of NHS numbers, surnames, dates of birth, postcodes, address, GP registrations and medical research information.

ORG say the medical research relates to cancer patients who form part of studies, that the government does not identify that this is "sensitive personal data" and that there is no discussion concerning processing or protection of such records.

The ORG said the group may mount a legal challenge to the system once the Scottish government has published its consultation response to the plans.

"We will look closely at what the Scottish government says and whether it has taken into account all the evidence put forward," said ORG executive director Jim Killock.

An ORG spokeswoman added: "If the proposals are implemented as currently outlined in the consultation, they may also be open to a legal challenge if there are grounds that they don't comply with the Human Rights Act in protecting our right to privacy.

"It all really depends on the outcome of the consultation. Once we've had that, we'll take further legal advice."

The Lib Dems believe the move which leader Willie Rennie described as a "super ID database" could lead to ID cards.

A Scottish Government spokesperson said there was an intention to undertake a full privacy impact assessment before any decision is made.

"The Scottish Government has consulted and no decision has been made.

"Any organisation would have to ask the Registrar General for the information and already have a postcode for that person before asking.  The use of any information given to the organisation would be under conditions set out in a Data Sharing Agreement.

"The Scottish Government is opposed to the introduction of ID cards. The NHS Central Register has existed since the 1950s, and is already used by local authorities and health boards under strictly controlled arrangements, to ensure they are dealing with the right individual and to prevent mistakes being made."