The Identity Documents Bill abolished identity cards and the national identity register in December 2010. It was the first instalment of the government’s promise to introduce legislation to “restore freedoms and civil liberties through the abolition of identity cards and unnecessary laws.” The Protection of Freedoms Bill, presented to Parliament last week, is the next step.

The bill covers a multitude of matters. It provides for a maximum pre charge detention period of 14 days, scraps the notorious section 44 stop and search powers and repeals or rewrites the provision of powers of entry and associated powers. Clause 26 ends the fingerprinting (and other biometrics such as iris scanning) of children in schools without parental consent, and clause 25 provides for the destruction of DNA and fingerprint evidence samples of hundreds of thousands of innocent people. The bill provides for a code of practice about surveillance camera systems, including the CCTV and Automatic Number Plate Recognition systems, and the appointment of a Surveillance Camera Commissioner. It creates a new criminal offence of immobilising, moving or preventing the movement of a vehicle without lawful authority, aimed at rogue wheel clamping firms.

There will be reform of the vetting and barring scheme and criminal records regime to scale them back to more common-sense levels. Clause 82 provides that historical convictions or cautions for consensual gay sex with over-16s will no longer have to be disclosed. Clause 92  plans to amend the Freedom of Information Act so that if requested data is either held in an electronic dataset or the applicant expresses a preference for data in electronic form, “the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use”. The bill also strengthens the powers of the information commissioner. Marriage laws will be amended to allow people to marry outside the hours of 8am-6pm. And clause 99 repeals the provisions of section 43 of the Criminal Justice Act 2003 which allowed certain fraud cases to proceed without a jury.
Deputy Prime Minister Nick Clegg said: “This is a landmark Bill which will result in an unprecedented rolling back of the power of the state. The Protection of Freedoms Bill brings together a huge range of measures to restore the hard-won British liberties that have been lost in recent years.” Writing in the ‘Observer’, Henry Porter said: “The bill is a creditable start and it tells us that the Blair attack on liberty is spent.” But it is just two cheers from Cian Murphy. Writing in the ‘Guardian’ he said: “It is piecemeal reform of selective aspects of several years worth of intrusive legislation. Progressive reform should always be welcomed but let’s hold the fanfare. It’s no Magna Carta.” Even more critical is the Law Society, whose President, Linda Lee, said: “While the aim of scaling back state powers and reversing what has been seen as the widespread erosion of civil liberties in recent years is laudable the Bill as a whole fails to measure up to the Government’s grand rhetoric.” She said: “The Society has grave doubts that the Bill will be seen as the turning point in the growth of the surveillance society,” adding: “Freedom is also about enabling people, yet cuts to legal aid will do precisely the opposite.”

The full text of the Protection of Freedoms Bill 2010-11 can be found at:

http://services.parliament.uk/bills/2010-11/protectionoffreedoms.html

Last Thursday Christopher Graham, the UK Information Commissioner, sent his report on the state of surveillance, and recommendations for action, to the House of Commons Home Affairs Committee. While welcoming strengthening of the data protection regime, he said that technological and societal developments mean that the risks to individual privacy remain real. The collection of personal information has become increasingly central to the activities of organisations in both the public and private sectors.

The study by the Surveillance Studies Network, which was requested by the Commons home affairs committee, is an update to their findings in 2006, which warned of the dangers of a surveillance society. Introducing the latest report, the Commissioner, said: “Many of the new laws that come into force every year in the UK have implications for privacy at their heart. My concern is that after they are enacted there is no one looking back to see whether they are being used as intended, or whether the new powers were indeed justified in practice.” One example of this is the use of covert CCTV surveillance by local councils to monitor parents in school catchment area disputes under powers designed to assist in crime prevention and detection. But he welcomed the fact that the recent change of Government had led to significant rolling back in some areas of state data collection, such as the abolition of the National Identity Register (NIR), the controversial database that formed the heart of the now abandoned identity cards scheme, and compliance with the European Court of Human Rights ruling on the National DNA Database.

The report says that some technologies have gone from being a subject of speculation to being in mainstream use in many different areas. The national roll-out of automatic number plate recognition (ANPR) highlights the expansion of video surveillance and analysis, and the linking or sharing of data from different databases. The blanket requirement by some licensing authorities to install CCTV in all licensed premises irrespective of need, the fingerprinting of passengers using common departure lounges at airports, and the creation of  blacklist databases are all causes for concern. ‘Function creep’ is the big danger, involving new uses for technologies or data beyond what was originally envisaged or legitimated. For instance, since 2005 the DVLA is said to have raised an estimated £44 million by selling details on 18 million registrations.

CCTV has also continued to find new applications. Middlesbrough police announced that they had fitted 7 of their 158 CCTV cameras with loud speakers enabling control-room staff to talk to those they were monitoring to shame low-level offenders into conformity. The Home Office initiated a £3 million national roll-out of body-worn CCTV to police forces after a trial in Plymouth. The deployment of unmanned helicopter drones in UK civilian airspace for policing purposes has begun with the recent trial conducted by Merseyside Police. The report could have included Greater Manchester Police’s £80,000 balloon, called the Eagle Eye Blimp , found wanting after just 18 surveillance sorties because it couldn’t cope with Manchester rain. Other concerns include body scanning, workplace monitoring, abuse of social networking, databrokers and the new breed of social geodemographic systems exemplified by Google Latitude.

The Commissioner makes several recommendations, including a requirement for a privacy impact assessment to be presented during the parliamentary process, robust privacy safeguards as the default setting when new on line services are offered to individuals, and increased post legislative scrutiny of legislation. The report concludes: “It will remain an important question, however, whether the current legal instruments, at UK and European levels, including specific data protection legislation as well as broader human rights law, are robust enough to limit surveillance and curb the excesses of data collection, or whether legal reform and better integration of legal and other regulatory instruments will be the linchpin upon which much else depends.” The full text of ‘Information Commissioner’s report to Parliament on the state of surveillance’ can be found at:
http://www.ico.gov.uk/~/media/documents/library/Corporate/Research_and_reports/surveillance_report_for_home_select_committee.ashx

Party manifestos are really little more than wish lists. But the unprecedented Tory and Liberal coalition agreement, produced at breakneck speed, and to be followed in due course by a final and fully comprehensive agreement, is something else. It is little short of a Queen’s speech for a whole parliament. Section 10 of the agreement is about civil liberties. The preamble states: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” There follow 12 specific pledges.

 Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy. The agreement pledges further regulation of CCTV, the ending of storage of internet and email records without good reason and the adoption of the protections of the Scottish model for the DNA database. The presumption of innocence and the principle that every defendant has the right to be tried by a jury were weakened by the Domestic Violence, Crime and Victims Act 2004 and the right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. The rights to freedom of assembly and demonstration were eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. The coalition agreement promises the protection of historic freedoms through the defence of trial by jury and the restoration of rights to non-violent protest.

In June last year, the law lords dealt a major blow to the controversial use of control orders on terror suspects, saying that reliance on secret evidence denies them a fair trial. The then Liberal Democrat home affairs spokesman, Chris Huhne, and Chris Grayling, the then shadow home secretary, went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”. Under section 44 Terrorism Act 2000 police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year a total of 117,278 people were stopped and searched. The coalition agreement promises safeguards against the misuse of anti-terrorism legislation.

Kenneth Clarke, the new Justice secretary, and his team, including Lord McNally, Lib Dem leader in the Lords, will immediately commence work on the promised ‘Freedom or Great Repeal Bill.’ Other major provisions include the scrapping of the ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database; the outlawing of finger-printing of children at school without parental permission; and the extension of the scope of the Freedom of Information Act to provide greater transparency. There will be a review of libel laws to protect freedom of speech and a new mechanism to prevent the proliferation of unnecessary new criminal offences.

The full text of the Conservative Liberal Democrat coalition Agreement can be found at:-

http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx

Over the past decade there has been a wholesale removal of rights that were apparently protected by the Human Rights Act and set down nearly 800 years ago in Magna Carta. The liberties that were assumed to be guaranteed by British culture have been compromised, as have constitutional safeguards that were once considered beyond the reach of a democratically elected legislature. The attack has been as broad as it is deep, with over 25 Acts of Parliament and some 50 individual measures involved so far.

That is the conclusion of “What We’ve Lost”, a report by the UCL Student Human Rights Programme, compiled for the Convention on Modern Liberty. This conclusion is backed by many examples. The presumption of innocence and the principle that every defendant has the right to be tried by a jury have been weakened by the Domestic Violence, Crime and Victims Act 2004. The important distinction between standard of proof for criminal and civil law was eroded with the introduction of ASBOs. The right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. Under the Identity Cards Act 2006 and the Children Act 2004 a record of all the important transactions in a person’s life will be created by electronic verification. The rights to freedom of assembly and demonstration have been eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. Jack Straw’s Coroners and Justice Bill will end the independence of coroners, who until now have been able to investigate the cause of suspicious or uncertain deaths and criticise government departments and agencies. And so on.

In “The Assault on Liberty”, a ‘radical polemic on the state of the nation’, Dominic Raab, Chief of Staff to the Shadow Home Secretary, asks whether we can really defend our freedom by sacrificing it. “In the last ten years the government has launched an unprecedented assault on our civil liberties”. Writing in the ‘Guardian’, Timothy Garton Ash maintains that Britain has more CCTV, a larger DNA base and more police powers and email snooping than any comparable liberal democracy, coupled with a bungling bureaucracy that keeps losing vital information. He asks “how can a government of intelligent and often liberal-minded persons behave so illiberally, arrogantly and stupidly?” He sees hope in a three pronged fightback, led by judges and lawyers, the House of Lords Constitution Committee (see ‘Big Brother parts 1 & 2’, posted here on 10 February) and a rainbow coalition, many of whom have joined together to launch the Convention on Modern Liberty.

The full text of the “What We’ve Lost” report is at:- http://www.uclshrp.com/images/uploads/pdf/Abolition_of_Freedom_Act_2009.pdf

In August 2004 the Information Commissioner Richard Thomas warned against the possibility of the UK sleepwalking into what he referred to as a “surveillance society” in which the tools of mass surveillance have become ubiquitous and individual privacy a thing of the past. In particular, he expressed concern about a raft of new Government proposals, including the establishment of a national identity card scheme, and the creation of a database containing the name and address of every child under the age of 18.

The House of Lords Constitution Committee’s report ‘Surveillance: Citizens and the State,’ after detailing specific concerns about the current situation, had this opinion in mind when making over 40 recommendations. Some relate to the Information Commission itself. There should be an expansion of its remit and more consultation by the Government. Before introducing any new surveillance measure, the Government should endeavour to establish its likely effect on public trust and the consequences for public compliance in conjunction with the Information Commissioner’s Office. The committee recommend that DNA profiles should only be retained on the National DNA Database (NDNAD) where it can be shown that such retention is justified or deserved. “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.”

The Government are enjoined to propose a statutory regime for the use of CCTV by both the public and private sectors, introduce mandatory encryption of personal data and undertake post-legislative scrutiny of key statutes involving surveillance and data processing powers, including those passed more than three years ago. There are several recommendations stressing the role of individuals, concluding with “We believe that the Government should involve non-governmental organisations in the development and implementation of surveillance and data processing policies with significant implications for the citizen.”

Britain does not have a written constitution, which make the twin pillars of executive restraint and individual freedom all the more important for the rule of law. Unbridled surveillance disturbs both pillars and the members of the Constitutional Committee, with their impeccable credentials, have done great service in warning of the risks undermining the fundamental relationship between the state and citizens. Very effectively they have nailed the canard that if you have nothing to hide you have nothing to fear.

The report is worth a read and you can see the full text at:
http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/1802.htm

“We regard privacy and the application of executive and legislative restraint to the use of surveillance and data collection powers as necessary conditions for the exercise of individual freedom and liberty.” Not the words of a committed civil liberties’ campaigner but the considered opinion of the House of Lords Constitution Committee, charged with an inquiry into “the impact that government surveillance and data collection have upon the privacy of citizens and their relationship with the State.”

In its report ‘Surveillance: Citizens and the State’, published last week, the cross party committee recognise that mass surveillance has the potential to erode privacy, which is an essential pre-requisite to the exercise of individual freedom. So to what extent should surveillance and data collection be permissible within the current constitutional framework of the UK?

Britain leads the world in the use of CCTV. Surveillance technology is used to achieve specific ends, such as maintaining public order, anticipating and meeting social needs, and responding to market trends and consumer demand. National security, public safety, the prevention and detection of crime, and the control of borders lead to the use of a wide range of surveillance techniques and the collection and analysis of large quantities of personal data. As a result, surveillance has become an inescapable part of life. Every time you make a telephone call, send an email, browse the internet, walk down the local high street, your actions may be monitored and recorded.

The committee recognises that there are advantages. Protecting the public is a duty of government. The potential of being able to obtain public services from central or local government quickly, reliably, and efficiently is some justification for “electronic government”. But there are disadvantages. “Privacy, trust in the state, and the security of our personal information [are] all now at risk owing to the growth in surveillance, and there [is] a pressing need to take the potential pitfalls of surveillance seriously.” The report is particularly critical of the current arrangements that allow the state to store and retain indefinitely the DNA data of anyone questioned by the police. The committee are disturbed that there are few restrictions and no clear legal limit to the use of public area CCTV cameras and the data collected by them.

The report quotes police evidence that “citizens are very happy to support the
development of surveillance and of data acquisition mechanisms that achieve a
balance between privacy and safety.” But where does that balance lie? The report is concerned that the long standing traditions of privacy and individual freedom, which are vital for democracy, are being undermined, an echo of President Obama’s words: “As for our common defense, we reject as false the choice between our safety and our ideals.”