Last June the law lords dealt a major blow to the controversial use of control orders on terror suspects, a key part of the government’s battle against terrorism since the July 2005 bombings, saying that reliance on secret evidence denies them a fair trial. The nine-judge panel upheld a challenge on behalf of three men on control orders who could not be named. The orders were not quashed but the law lords ordered that the cases be heard again. Lord Phillips of Worth Matravers, the senior law lord who led the panel, said that “a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him”.

As a result of this ruling up to 20 men regarded as Britain’s most dangerous terror suspects became able to challenge their detention. A man of dual Libyan and British nationality, known as AF, had been subject to a control order for three years because of alleged links with Islamic terrorists. His order has been revoked. Another terror suspect, known as AN, suspected of links to al-Qaida, was released from his control order in July. AE, an Iraqi national suspected of involvement in terrorist training and activities, has also been released from his control order. Two more are due to begin court battles from 1 October to get their control orders revoked as a result of the Law Lords ruling. This reduces the total number of terror suspects currently under the surveillance regime to 15. For the first time, the majority of them – nine out of 15 – are British citizens, with seven living in the London area.

Home Secretary Alan Johnson told the Police Superintendents’ Association of England and Wales conference on 16 September that control orders are not perfect but they remain the best option to protect the public. On this basis, he had decided to maintain their availability “within the constraints of the House of Lords judgment.” He added “however, as further control order cases are considered by the courts during the autumn, I will be keeping this assessment under review.”

At the same time, in a ministerial statement, he has ordered a wholesale review of the control orders regime. “I have asked the independent reviewer of the Prevention of Terrorism Act 2005, the Lord Carlile of Berriew QC, to review the impact of the House of Lords judgment and to advise me as to whether the assessment that the regime remains viable is right.” In addition Lord Carlile has been asked to keep a watching brief on further control order cases in the high court over the next few months, to assist in the process of assessing the workability of the regime. Lord Carlile is due to report back early next year.

This column has banged on at some length in recent times about the dangers to civil liberty and privacy caused by unlimited surveillance, and now the EU is weighing in with the same concerns. “Europeans must have the right to control how their personal information is used” said Viviane Reding, the EU’s Commissioner for Information Society and Media, announcing this week several areas in which the Commission is ready to act to maintain this right as technology trends make it easier to use, and misuse, personal information.

The Commissioner said that European privacy rules are crystal clear: a person’s information can only be used with their prior consent. Radio Frequency IDentification (RFID), the smart chips integrated in products such as electronic bus passes to send radio signals, would only realise their economic potential if they are used by the consumer and not on the consumer. “No European should carry a chip in one of their possessions without being informed precisely what they are used for, with the choice to remove or switch it off at any time.” The Commissioner also called on social networking companies to reinforce privacy protection online, particularly the profiles of minors, which must be private by default and unavailable to internet search engines. Mrs Reding asks “do we not cross the border of the acceptable when, for example, the pictures of the Winnenden school shooting victims in Germany are used by commercial publications just to increase sales?” The European Commission has already called on social networking sites to deal with minors’ profiles carefully, by means of self-regulation. The Commissioner warned that the EU would take action where Member States fail to implement EU rules ensuring privacy and the need for a person’s consent before processing his or her personal data.

Regarding behavioural advertisement systems that monitor internet users’ web browsing to better target them with advertisements, “we cannot…have all our exchanges monitored, surveyed and stored in exchange for a promise of ‘more relevant’ advertising”. Earlier this week the European Commission launched proceedings against the UK concerning this online advertising technology developed by UK based Phorm, tested by BT and cleared by the authorities. The current UK law allows internet traffic to be intercepted if the company doing the intercepting believes that it has consent. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications”. The Home Office said that it would respond to these proceedings in due course.

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.”