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Surveillance (Constitution Committee Report)

My Lords, it is customary to say that reports are powerful but this report is the most powerful that, in the 11 years that I have been in this House, I have seen from any committee in either House. Its power comes from the fact that it delves into the heart of the principle of what freedom means in the 21st century. In recent years, the ability to gather and store data on people has developed to beyond anything our legislation was designed to cope with, even legislation that passed into statute as little as 10 years ago. The committee was composed of individuals with a deep understanding of what the constitution is meant to protect. Therefore, it has produced a thoughtful report and one with many practical suggestions. I associate these Benches with the tributes paid to Lord Holme of Cheltenham, whom we of course greatly miss, and with the moving tributes to Lord Dahrendorf and Lord Bledisloe. The House will miss them all greatly. The committee states in its report: ""We regard a commitment to the freedom of the individual as paramount. It is a precondition of the functioning of our existing constitutional framework"." That concept is incredibly important in the debate that the committee goes on to address—that freedom means two things: freedom from interference in our private lives, and the freedom provided by security so that we can go about our lives safely. I also found the evidence volume extremely interesting. One example of it is page 183, where Professor Bert-Jaap Koops from the Tilburg University Institute for Law gives an overview of the approaches to the right to anonymity in France, Germany, the US and Canada. It is important that the committee took that much wider view because, in a world where people and data travel so much, it is impossible to confine our view to the purely domestic. ID theft can and does happen on a global scale, and international events of course produce domestic legislation. There is no more powerful example than 9/11 in the US producing the domestic legislation that we passed in haste but now rubber-stamp each year. The committee identified that public acceptance of a much increased level of surveillance had clearly resulted from the terrorism threat, but we on these Benches are astonished that the Government are so dismissive of the recommendations in paragraphs 486 to 488 that they should engage the public properly in a debate about the balance between the risks and benefits of surveillance, data collection and data sharing. They just pass the buck to the Information Commissioner’s Office. Richard Thomas in his time in that office has done a fantastic job at raising public awareness of these issues and no doubt his successor will continue this work. However, leaving the whole task to the ICO would only be appropriate at all if the ICO were resourced at a level that enabled it to do the work on the scale that the committee is recommending—although I am not sure that it would be appropriate even then. Can the Government say by how much they are intending to increase resources to the ICO’s office? While on the subject of the Information Commissioner, I remind the Minister that it was only after opposition in your Lordships’ House, which voted for my amendment in the Criminal Justice and Immigration Bill in 2008 to strengthen the Information Commissioner’s powers, that the Government conceded that that was necessary. They have still not produced the regulations to do that, as the committee points out in its report in paragraph 243. The same powers need to be applicable to the private sector, with which the public sector is utterly intertwined anyway. These Benches will pursue that at every opportunity. This report is not the first to warn that the Government’s enthusiasm for data sharing has given the impression that they view the practice as an "unconditional good". The Thomas-Walport review warned of that in 2008. The Government have had some time to pay attention to the risks that that report underlined and to prepare themselves better for a response to this report. The report mentions an interesting new term, "dataveillance"—amassing personal data, data sharing, data mining, profiling and data matching, as well as more obvious forms of surveillance, such as CCTV, which pose a very different level of threat to freedoms. I am grateful that the noble Lord, Lord Pannick, has saved me some time, because he has examined deeply the question of DNA retention. In our debates on the Policing and Crime Bill we will have a further opportunity to debate that issue, and we will take the opportunity to challenge the Government’s attitude. The report outlines many concerns that too much data are collected. In other cases, too many people have access to those data. The technology is leaping ahead of political oversight. In paragraph 12 on page 438 of the evidence, there is an interesting comment about the police national computer, which is subject to "collaborative working", whereby people who might like to access it, but strictly speaking should not, can in fact get the information they need very easily. The evidence points out that vehicle and handheld terminals make confidentiality much more difficult to assess and control. That is the technological challenge. Many of your Lordships have mentioned the application of the Regulation of Investigatory Powers Act. The fitness for purpose of that Act covers everything from life-and-death issues to the everyday. On death—we are debating this in the Coroners and Justice Bill—the Government maintain that there is a need to guard methods of gathering intercept evidence and that the evidence must lead sometimes to closed inquiries substituting for inquests—even though we are apparently the only country in the world to find intercept evidence inadmissible. However, I accept that there is more debate to be had on this. I was very interested in the contribution of the noble Baroness, Lady Manningham-Buller, on this subject. We urgently need the implementation of the proposals in the Chilcot review, which, according to the information that the Government recently sent round, is still at the stage of a design model—yet we are passing legislation all the time that depends on the outcome of that review. On a more everyday level, there is concern about the interception of communications for commercial gain. There was an illegally trialled interception of web traffic when BT and Phorm decided to intercept users’ web traffic to produce a targeted advertising system. The Government’s response to that was very weak. I have mentioned previously in this House that the Home Office’s lack of interest in that illegality was ill-advised and led to speculation as to whether it was due to its own wish to use such technology that it regarded such an illegal trial so lightly. When RIPA became law nine years ago, such technologies were beyond the scope of legislators in making decisions on whether the Act was up to the job. Now its enforcement is something that the Government need to address. If the legislation is lacking in any way they must bring forward suggestions to improve it. The report considers two types of surveillance, as other noble Lords have said. They have mentioned all the issues around the use of RIPA by local authorities. The report’s recommendations on that are very important. The report also highlights the fact that authorisation is available to too many bodies, that RIPA allows surveillance authorities to authorise their own activities without judicial oversight—that is a particularly important gap—and that there is a division of responsibility for surveillance between different commissioners. That was interesting to read and there was a variety of opinion as to whether those activities were satisfactory or unsatisfactory. There was clearly a difference of opinion as to whether or not the system was unduly bureaucratic. RIPA was passed in 2000. I remind your Lordships that local authorities were not at that time included in the list of public authorities that could have access to communications data. That provision was introduced in secondary legislation in 2003. That highlights the danger of secondary legislation and how very careful we must be when granting the Government powers under something as critical as RIPA. The orders can result in infringements such as those mentioned by noble Lords this morning. We found that the Government’s overall response to the criticisms of RIPA were very weak. I am looking forward to the Minister’s defence. In other European countries, such as Germany, there is a constitutional commitment to the principle of proportionality which governs all data and surveillance rules. I should be interested in the Minister’s comments on the proportionality issue. The report proposes some immensely important actions on Article 8 compliance, on judicial oversight of surveillance, on identification systems, and on areas for new legislation. The report has effectively drawn up a work programme for the joint committee that it proposes, whereby, as legislators and scrutinisers, we would have a far better grip on this whole area. The key recommendations are in paragraphs 493 and 494. The Government may not, as their response states, be, ""persuaded that the creation of a new joint committee is the most effective way to ensure effective scrutiny"." I ask the Minister: do the Government prefer the disjointed approach because it leaves far less room for informed challenge? That is what they are saying—if they do not want a joint committee, they prefer a disjointed approach, with responsibility and oversight spread between different departments and Select Committees. However, the report highlights that the link between the citizen and surveillance is the basic functioning of our constitution. If the Government are serious about constitutional reform, they must accept that the proposal to establish a new joint committee on surveillance is essential.