The report of the Constitution Committee on Surveillance: Citizens and the State has now been published. A HTML version can be read here. It has attracted considerable media attention: it is the lead story in The Guardian and has been widely covered by the broadcast media, including the BBC.
Given that the committee deals with the constitution, its primary focus is the principle of freedom of the individual. Privacy is an essential prerequisite to the exercise of individual freedom and that is being threatened by pervasive and routine electronic surveillance and collection of personal data. This undermines the relationship between the state and the individual.
The UK is a world leader in terms of surveillance (use of CCTV cameras, retention of DNA) and much of this surveillance is not adequately controlled. There is obviously a case for some surveillance – in the interests of national security, crime detection and prevention and the like – but it needs to be proportionate and clearly justified. A great deal of data are held about individuals: there are problems with collection and security of that data and with ensuring that individuals are aware of what data are being held about them. As regular readers will know, I have a particular interest in ensuring that consent to holding personal data is informed, as opposed to passive, consent.
The report makes over forty recommendations. We recommend statutory regulation of the use of CCTV cameras, a clear legislative framework for the DNA database, a review of the provisions of the Regulation of Investigatory Powers Act (RIPA), used by some local authorities for covert surveillance of essentially minor offences and under which agencies can self-authorise the use of targeted surveillance, and amendments to the Data Protection Act to provide for privacy impact assessments (PIA) before any new surveillance regimes are introduced. We also favour tighter controls within government as well as a new joint parliamentary committee on surveillance and data powers, to which the Information Commission could report. We also strongly favour strengthening the powers of the Information Commissioner.
What happens next? The Government will provide a written response to the report within the course of the next two months. After that, a debate will be scheduled in the House, so that we can pursue what is in the report and respond to the Government. The more pressure we can bring to bear on Government, the better. The subject of the report is enormously important. Privacy is essential to a free society. Without it, the state is all-powerful.
I enjoyed hearing your interview on Radio 5 Live about this!
I haven’t had a chance to read the report yet (only the headings and read the recommendations) but I wonder if the CCTV debate is likely to progress much the same way as the DNA debate. Human rights groups and some Backbenchers make a lot of noise but a government with a decent majority does as it pleases; as looking tough is seen to be politically advantageous that means no change. The DNA issue only moved when the government lost in the ECHR. Are there perhaps already similar challenges over CCTV/Children’s database waiting the long period for consideration.
I have to say I found 456 rather disturbing: “Organisations which refuse to allow the Commissioner to carry out inspections are likely to be those with something to hide.” That sounds pretty much the argument used for every unreasonable intrusion/ police stop and request for new anti-terrorist power. Namely that only the guilty have anything to fear.
It’s all well and good in larger companies where they can have a dedicated person for data issues but for the small biz it’s someone’s 13th responsibility and they will feel this is just going to lead to another set of bureaucratic hoops to jump through that they want/need like a hole in the head.
I’m not clear – perhaps it’s in the report – but our Information Commissioner post seems very much a watered down version of the French CNIL? The French system seems to put an independent authority (as much as it ever can be) at the heart of government data exchange not sitting on the sidelines.
Many of the recommendations in the report strike me as incredibly weak. For instance, in the section on individual privacy right after noting that privacy is essential for the development of the person and relationships it gives the following recommendation…
“As surveillance is potentially a threat to privacy, we recommend that before public or private sector organisations adopt any new surveillance or personal data processing system, they should first consider the likely effect on individual privacy.”
But surely this, in some sense, is what the government has been doing all along. They constantly pay mere lip-service to the issue of privacy while downplaying its importance. All this when the effect on individual privacy of mass surveillance is obvious.
As such, it would seem that further consideration is not what should be advocated. Instead what is needed is positive protections, in the form of an acknowledgment that the citizen has a right to privacy, is needed. In short something close to a bill of rights that legally binds the government’s hands and can be invoked by the citizen to prevent further encroachment. Lord Norton’s BBC interview went some distance toward making the case for statutory oversight but it seems to me that rather than treat this issue as just another policy proposal that may need further policy to correct, we should be pointing out that surveillance of the kind currently conducted fundamentally alters the relationship between citizen and state and distort it into something illiberal. As such if we value the liberal state, this value can only be preserved by constitutional protections that have the power to trump mere statute. In short, I believe that this issue, more than any other, clearly highlights the need for an explicit bill of rights with, perhaps, a requirement that those rights cannot be overturned without amendment by both referendum and a 2/3 majority. Hey it works for our friends across the pond.
Lord Norton
That is an interesting piece of reading – and I have hardly touched the surface. I agree with the basic premise that surveillance is inevitable, but it should be both transparent and clearly regulated.
In some areas I was hoping for a stronger statement. For example it says:
> 197. … We expect the Government to comply fully, and as soon as possible, with the judgment of the European Court of Human Rights in the case of S. and Marper v. the United Kingdom, and to ensure that the DNA profiles of people arrested for, or charged with, a recordable offence but not subsequently convicted are not retained on the NDNAD for an unlimited period of time.
That sounds very nice, but it does not really mean much. So the Government should comply with the ECHR? I was always under the impression this should be assumed as given (even though I know that it is not always the case). And the concrete recommendation is so weak that it is useless: the government could comply by only storing DNA samples for 500 years.
Still, I am happy that the discussion about these issues is finally taking place. I guess we all expect that the government will give an evasive response, but the thoroughness of the report really demands a more substantiative answer.
I just watched you in that BBC article that you linked to. I’ll read the report when I have some time but I hope it does live up to its billing (and, just as importantly, it makes the Government stop and think).
B and Thomas: The recommendations you refer to have to be read in the context of the other recommendations, which are designed to create a legislative framework for dealing with the retention of DNA and governing the use of CCTV cameras. They should also be read in the context of the proposal for amending the Data Protection Act to provide for privacy impact assessments as well as tightening government in its handling of data. It is worth reading the whole report.
Croft: The committee did examine experience elsewhere, especially in North America. The intention is to strengthen the Information Commissioner, not for creating an additional bureaucratic burden on firms but for ensuring that important data are properly protected. The Information Commissioner has done an excellent job but is in need of strengthening.
The trouble is that we may be too late now…
Much of the funding for ‘bobbies on the beat’ has been transferred to CCTV. Most shops have CCTV. Young people queue up for the chance to appear on ‘Big Brother’ and so maybe don’t value privacy in the same way – in a ‘celebrity culture’ world they aspire to be in front of the camera – so why not get ready for that experience now ??
I agree that the use of the DNA Database is insidious and it’s shocking that innocent people are finding it so difficult to get their data removed. And it is dreadful that RIPA powers are being used to snoop on children to establish whether they are within a school catchment area. But what would happen if they abolished this now ?
http://southvilleparking.blogspot.com/ This person takes the same ‘name and shame’ approach to selfish parking as councils want to take to fly-tippers.
I have some sympathy for this – and one imagines it is only a matter of time before ‘bloggers’ starting snapping dog-fouling and posting the recalcitrant owners on the web. Goodness knows we all get upset enough about selfish and inconsiderate litterbugs to want to do something drastic about it from time to time.
But do we really want to live always looking over our shoulder in case someone and their digital camera / phone is going to make us ‘World Wide Web Famous’ by posting our mugshots [and licence plates!] on the internet ? Is there any way of stopping this sort of behaviour now that the genie of cheap cameraphones and blogging for all technology is available ?
What does ‘PRIVACY’ mean anymore anyway now that millions of people happily post the most personal of information quite voluntarily and without any compulsion on ‘social networking sites’ ??
Questions to ponder for the future..
Bolting the stable door… I have considerable sympathy with what you write and I certainly take the point about the material that people now freely make available about themselves on the Internet. One of the problems is often lack of awareness of who can access data, how secure the data are, and who the data are shared with. We are often overly trusting and give away information without thinking through what may be done with it. I would, though, take a different view on your very last point – I think they are questions to ponder now. We certainly need to address what privacy is; it is something about which we had considerable discussion in committee and I would welcome a wider debate.
I served on an East Midlands city council when CCTV was introduced in the city centre, heavily subsidised as I remember it by central government. The cameras were to feed into and be monitored in City Hall and used for “serious” crime only, we were told.
I had at the time significant concerns over civil liberty implications and the potential for serious crime to be displaced from the city centre into non-monitored residential areas.
When we were beyond the point of return in decision taking, we were informed the set-up would have a direct feed to the local police station, which was no doubt excellent for efficiency in apprehending criminals but not democracy as the Council was not represented on the (then) police committee.
I have since moved to the North Wales coast. CCTV was used here to focus on the immediate surrounds of pubs in the centre in the aftermath of the smoking ban to charge persons – already fuming about the ban – for discarding their cigarette ends on the pavements with litter offences.
A major problem for democracy in the UK, of course, is that it has no constitution, just a mix of statutes, treaties and custom and practice which the overly imaginative describe as an ‘unwritten constitution.’ But where are our RIGHTS in this unwritten constitution? Our rights appear to consist of whatever Westminster has left us with last. And if this is such an excellent way of doing things, why has – I believe – every state that has left our once considerable empire set about, first and foremost, writing a constitution as its top priority?
Only rights can stop the wrongs, however many information commissioners or whatever Westminster creates for some future Government to render impotent by underfunding.
Lord Norton,
The other problem with data being shared, which people are often not fully aware of is that once data is posted on the internet, even for a day, then it will be impossible to remove. It will be ‘cached’ on an internet search engine and often archived. Even when data is ‘deleted’ on a hard disk it still persists and can be recovered later on.
Of course, very wealthy people can go to inordinate cost to remove sensitive or inaccurate information. And even then not always with complete success. I suspect that this problem will not become apparent for years when embarrassing information is used against one in, for example, job interviews or when applying to adopt children.
Lord Norton,
The other problem with data being shared, which people are often not fully aware of is that once data is posted on the internet, even for a day, then it will be impossible to remove. It will be ‘cached’ on an internet search engine and often archived. Even when data is ‘deleted’ on a hard disk it still persists and can be recovered later on.
Of course, very wealthy people can go to inordinate cost to remove sensitive or inaccurate information from the internet. And even then not always with complete success. I suspect that this problem will not become apparent for years when embarrassing information is used against one in, for example, job interviews or when applying to adopt children.
But won’t wealthy people be able to use the Human Rights Act, and the ‘right to a private life’ in ways which frustrate investigative reporters looking into matters which they feel are in a legitimate public interest ?
But it is this kind of story which makes me think that the Government don’t understand our concerns at all, and are not listening to your concerns…
http://news.bbc.co.uk/1/hi/uk/7877182.stm
I we just address The Surveillance Society, we would be missing some of the other things going on, that create a very worrying bigger picture. I’m sorry about the long comment, but it is necessary to list some of the recent initiatives, to make the point.
I do hope that the Lords will look very carefully at The Coroners & Justice Bill when it gets to the Lords, especially at the “Information Sharing Orders” Part 8 (clauses 151 – 154). These seem to throw the safeguards of the data protection act, right out of the window. Eg Clause 152 on Information Sharing, allows any Welsh, Scottish, NI or English Minister in charge of a government department to “confer powers on any person to enable further or onward disclosure of the information”
With the establishment of databases containing personal data, all over the place, we are in danger of becoming a police state. Some of those that have been in the news recently are:
ECRIS (European Criminal Records Information System). Under Legislative Acts and Other Instruments, the Council of the European Union Brussels, on 20 January 2009 issued (OR. en) 14571/08, whereby there will be systematic exchange of criminal record data, whether true or false.
“Kiddy Print”. The Mail (11th Oct 2007) quoted a Professor Ross Anderson, Cambridge University professor and expert on privacy, as saying: “Britain is out of line with the rest of Europe, where the fingerprinting of schoolchildren does not happen. It is a slippery slope. Certainly, the pupils are being softened up and led to believe that giving their personal biometric data to the authorities is normal behaviour.”
Contact Point, the £224million government database holding the name, address, date of birth, parent’s details, General Practitioner, and name of school of all English children under 18. It also contains special details of contacts with youth or social worker contacts. On 26th Jan, 2009, according to The Times, ministers made an official estimate that 390,000 people in all would be able to use the system.
Kablenet. The Serious Organised Crime Agency is extending its integrated information management and communications infrastructure to other policing bodies, expecting to spend between £300m and £500m according to a pre-tender notice it published in the Official Journal of the European Union in December 2008. Other organisations which may use the infrastructure are the Home Office, the UK Border Agency, the Identity and Passport Service, the Criminal Records Bureau, the National Police Improvement Agency, UK police authorities and their “statutory successors and organisations”.
Travel Database. According to The BBC, 8th Feb 2009, The government is compiling a database to track and store the international travel records of millions of Britons.
Confidential Intelligence Unit (CIU) According to The Daily Mail, 7th Feb 2009: A secret police intelligence unit has been set up to spy on Left-wing and Right-wing political groups. The Confidential Intelligence Unit (CIU) has the power to operate across the UK and will mount surveillance and run informers on ‘domestic extremists’.
I look to The House of Lords to stop this slide into the sort of world that Orwell warned us about in his book, 1984, because all the elements of this type of police state seem to be being put in place in recent legislation.
Sorry, but If should be the first word in the comment above, not I.
One thing I’ve noticed is that the House of Lords report has finally got the public to think about privacy issues. For the past few years I’ve noticed that, in the Have Your Say section of the BBC, most of the people posting there, in the past, supported the Government’s line and called those of us who worried about privacy issues friends of terrorists and criminals. Now people have realised just how important our privacy is.
Thank you for standing up for our rights.
Alfred: Thanks for drawing these points out. They are extremely helpful. hifranc: I think you are right; there is a growing awareness of the problems arising from increased invasion of privacy. I hope that the work of the Committee has contributed to that awareness. As we stress, one of the problems has been that people often are not aware of how extensive surveillance is and how much personal data are stored by different organisations.
Stephenpaterson: a written constitution would not necessarily prevent such intrusion by public bodies. Look, for example, at some the powers enjoyed by public bodies in other countries (where written constitutions are employed). The need is not for a codified constitution but rather for a clear statutory framework. A statutory framework allows for greater certainty than broad constitutional provisions.