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Surveillance (Constitution Committee Report)

My Lords, the report was published in February this year after a lengthy inquiry, which commenced during the chairmanship of your Lordships’ committee by the late Lord Holme of Cheltenham. I speak on behalf of all members of the committee in paying tribute to the wisdom, assiduity and vivacity with which he chaired our proceedings. I also pay tribute to the work of the late Lord Bledisloe, who died recently; his scholarship, experience and attention to detail made an invaluable, and indeed memorable, contribution to all our proceedings. I am grateful not only to members of the committee but to all those who gave evidence to us in this country, in Canada and in the United States of America. While the committee alone is responsible for its conclusions, those conclusions are based on the evidence submitted, and the witnesses played a crucial role in influencing them. I thank our specialist advisers, Professor Charles Raab of Edinburgh University and Dr Ben Goold of Oxford University, and our legal adviser, Professor Andrew Le Sueur of London University. The contribution of the clerks has been beyond praise but their identities will remain, as always, shrouded in impenetrable mystery. I am grateful to Jack Straw, the Lord Chancellor and Secretary of State for Justice, a regular witness before your Lordships’ committee, for co-ordinating and presenting to Parliament the Government’s response to the report, which was published on 13 May. Your Lordships’ committee published an analysis of that response on 7 June this year, which recites our various points of appreciation and of disappointment, together with the reasons for both. The issues addressed in the report affect every citizen in the land and its publication occasioned widespread—indeed, perhaps unprecedented—media coverage, both in this country and elsewhere. In the limited time available, it would perhaps be helpful for the purposes of debate if I referred to the issues covered by the Government’s response, together with others to which Government and Parliament will return in the future, rather than dwelling in general and abstract terms on those considerations already rehearsed in the report about the future balance between privacy, security, necessity, proportionality and the relationship between individuals and the state. I shall touch briefly on the National DNA Database, closed circuit television, covert surveillance by local authorities, oversight of the powers of surveillance exercised under the Regulation of Investigatory Powers Act, the encryption of personal data held by the state and privacy impact assessments. The committee made 44 recommendations. I shall, inevitably, mention but a few. We believe that the Regulation of Investigatory Powers Act 2000 should be amended to include judicial oversight of surveillance carried out by public authorities and that compensation should be paid to those who are found to have been subject to unlawful surveillance under the Act’s powers. We recommend that the Government should consider whether local authorities are the appropriate bodies to exercise RIPA powers and that, if they so continue, there should be a definition of the circumstances in which the use of these powers is appropriate. As the Minister will be aware, there has been massive public concern about the use of the powers in relation to rubbish and residential qualifications for education purposes. We recommend that the Data Protection Act 1998 should be amended to make it mandatory for government departments to publish a privacy impact assessment before adopting new data collection or processing schemes and that the Information Commissioner should scrutinise and approve those assessments. We recommend, inter alia, that legislation should be introduced to replace the existing regulations governing the National DNA Database to reassess which DNA profiles are retained and for how long. We welcome the Government’s decision now to reassess this matter, which is of immense public concern. We recommend that the Government introduce a statutory regime for the use of closed circuit television and legally binding codes of practice for all CCTV schemes. We welcome the Government’s acceptance of the need for, and recent commissioning of, an independent appraisal of the effectiveness of CCTV. It is of astronomical expense, paid for by the taxpayer. We heard evidence from the police that, since most violent crime is unpremeditated, it does not deter violent crime and that car crimes are committed round the corner where there is no CCTV. I hope that the Government may revisit their objection to our recommendation of a statutory regime for CCTV. I hope, too, that the Government will reconsider their decision not to allow the Information Commissioner power to inspect private sector organisations without their consent. As public service functions increasingly involve transfers of personal data across organisations and sometimes across other unintended boundaries, there is a widening anomaly in the application of the Data Protection Act 1998, about which many people are deeply worried. Those private sector organisations that successfully resist the Information Commissioner’s power to inspect may well be those with something quite serious to hide. I hope that in his reply the Minister will be able to give your Lordships more details about how the Information Commissioner may be better empowered to monitor the effect of surveillance and data collection on Article 8 rights under the European Convention on Human Rights, which is an extremely sensitive and uncertain area. We recommend that the Data Protection Act 1998 should be amended so as to make it mandatory for government departments to publish a privacy impact assessment before the adoption of any new data collection or processing scheme and that the Information Commissioner should scrutinise and approve privacy impact assessments, which are a relative novelty in our jurisdiction but not in others. We welcome the Government’s commitment to urge greater flexibility in the inspection work carried out by the Interception of Communications Commissioner and the Chief Surveillance Commissioner, as we recommended. Perhaps the Minister will wish to say a word about proposed future guidance to public authorities in this area and the future work of the Investigatory Powers Tribunal. Realisation of the enormous increase in surveillance and data collection by the state and other organisations, and dissemination thereof, has now dawned on Parliament, on government, on the public and on those in the media who take an interest in these matters. It is seen by many people as a threat to our long-standing traditions, privacy and individual freedom. We have recommended that a parliamentary Joint Committee on the surveillance, data collection and distribution powers of the state should be established to scrutinise relevant legislation and practice. I think that that is an important recommendation in the light of terrorist threats and legislation that comes through without our really noticing it. I hope that the Government and Parliament may in due course come to share the view of your Lordships’ committee. A key recommendation—perhaps, in a sense, a text—for today’s debate is contained in paragraph 144 of the report: namely, that privacy and the application of executive and legislative restraint to the use of surveillance and data collection powers are necessary conditions for the exercise of freedom and liberty, which has been won over many centuries, and that privacy and executive and legislative restraint should be taken into account at all times by the Executive, by government agencies and by public bodies, all of which—or nearly all—should be accountable to Parliament. That, in recent years, has self-evidently not been happening. I hope that today’s debate may make some contribution to its doing so in the future. I beg to move.