Examination of Witnesses (Questions 80
THURSDAY 8 NOVEMBER 2001
80. You do not think they could get away with
it, even if they want to.
(John Wadham) No.
81. Do you have any particular concerns about
the Government's proposals to facilitate data sharing between
the law enforcement agencies and to enable the retention of data
logs by communication service providers?
(John Wadham) I would refer to page 13
of our notes. The proposal seems to be that communication providers,
that is British Telecom and others, would be obliged or encouraged
to keep telephone records and that is obviously the billing information
you get when you get a telephone bill. You will see at the back
of your telephone bill a list of all the calls you made and at
what time you made those calls and who those calls were to. Currently
the Data Protection Act and the principles ensure that that material
has to be destroyed after its usefulness has disappeared. In other
words, once you have paid your bill they destroy that material.
What the Government want to do is to encourage those communication
providers to keep that material on the off chance that it might
be useful at some point in the future. They would have to keep
millions and millions of records on millions and millions of innocent
people in this country just in case at some point in the future
it would be useful for gathering intelligence in relation to terrorism.
One of our concerns is that, at least it was suggested in The
Guardian newspaper yesterday, this new proposal would not be restricted
to investigation in relation to terrorism, but would apply in
all other criminal activities however trivial. I am not surprised
by that because there was a proposal a year ago to do precisely
that. There is in fact a draft paper which was sent to the Home
Office suggesting that. The question is whether it matters and
whether there are protections, but the answers in relation to
both of those is that it does matter and there are not sufficient
protections. Currently the Data Protection Act has a number of
serious exemptions including the prevention of crime, so it means
that in most circumstances if a police officer contacts the communications
provider and asks for information on the use of John Wadham's
telephone and my e-mail access and Internet access and all my
telephones at work, they will get it merely on a certificate,
on a notice served under the Regulation of Investigatory Powers
Act and there is no independent check on that mechanism. So a
police officer can basically-self-certify. You do not need a warrant
to invade someone's telephone privacy, either from the Home Secretary
or anybody else. There are real problems about the amassing of
this information and the inadequate safeguards with that information
being available to the law enforcement authorities.
(Professor Gearty) This is a practical example of
what I said at the start of these proceedings. We have had RIPA
and we have been through all this ad nauseam yet the appetite
for restructuring the relationship between the individual and
the state seems insatiable on the part of the executive. What
have these minor crimes which it is now said might well legitimise
these searches got to do with the events of 11 September? There
are aspects of this proposal which would need to be looked at
terribly carefully to check that there is a causal relation between
the mischief at which they are ostensibly aimed and the reality
of the power involved.
82. What about data-sharing between law enforcement
agencies? That could have an impact on finding out where the terrorists
are and what the terrorists are doing.
(John Wadham) In a particular example,
there is no problem at the moment. If one law enforcement agency
says they have reasonable suspicion that this person is up to
no good and they want the information, then there is no legal
reason why that cannot be disclosed. The problem, if it is a problem,
is that agencies cannot share the mass of information involving
innocent and other people. You cannot run the Inland Revenue database
against the Social Security database, that is something which
is not possible under data protection. The reason it is not possible
is because inevitably the vast majority, 99 per cent, of people
whose information you are sharing with another agency, are in
fact innocent of all crimes. We are talking about the mass sharing
of data from one organisation to another and that is generally
contrary to the data protection principle. If a particular police
officer said he wanted this information because this person was
in fact a suspect, then he can get that now.
83. Some would say that the innocent would not
mind if the Inland Revenue information were shared with Social
(John Wadham) I accept that. The evidence
on opinion polls and others in relation to privacy is that although
most people first say if you have nothing to hide you have nothing
to fear, once you get through that processand people always
say it because when they are in a conversation with someone else
they feel that they have to establish their bona fidesonce
that process is over people are very concerned about privacy and
they are concerned about privacy in the way they are concerned
about healthy food. It is something which is a latent concern.
I should say that there is a Cabinet Office inquiry into data-sharing
which is about to report on this in general, although it has nothing
to do with 11 September.
84. If tracking were introduced, how easy would
it be to avoid being tracked anyway?
(John Wadham) The difficulty is where
to stop. If you carry a mobile phone, not only is the data available
about who you called and at what time you called and how long
you spoke to them, the reverse information is also true: who rang
you. Secondly, because mobile phones work on a cellular basis,
it is possible for the communications providers to collect information
about where you were at the time that the phone was being used.
In relation to that it is a tracking device. I do not want to
be overly paranoid. In relation to an individual, if a suspected
terrorist were moving around the country, and the police wanted
information and they had some reasonable suspicion that this person
was a terrorist, I do not have any problem with that information
about their movements or their telephone calls being passed to
the police. Perhaps there should be some controls on that, perhaps
they should have to get a warrant from a magistrates' court or
something, but I do not have any problem in principle. What I
have a problem with is the mass of this information being collected
from everyone and being passed over willy nilly to whoever wants
it. That is the nature of this proposal.
85. If the Government are serious about introducing
large-scale traffic analysis are there any additional safeguards
which would help?
(John Wadham) The current arrangements
have safeguards because at the moment what the police have to
do is to demonstrate that in a particular case they need this
information for the prevention of crime or ascertaining criminal
activities. That is the current safeguard. If you take away that,
then there are real problems. Obviously if the Bill is published
we shall look very carefully at what other safeguards can be put
in place, but the current system is the safeguard itself and you
are fundamentally altering that if you take these next steps.
(Professor Gearty) Controlling the criteria which
permit access will be a key thing really. If it is genuinely engaging
in counter-terrorism, then there would be few objections, but
if it is spreading into ordinary crime, there is a real anxiety
about the extent to which this permits surveillance not previously
86. Part of what the Government are intending
to do is to oblige communications service providers to hang on
to their records for a great deal longer than they are presently
obliged to do: six years instead of 12 months, something like
that. You are not objecting to that, are you? If you are, it is
no good you arguing that you have no objection to the Government
using it where it can make a serious case out, because the information
would not exist, would it?
(John Wadham) The Chairman is right to
ask that question, because I am making both objections, I am saying
that the fundamental nature of data protection is that if you
collect information for one purpose, that is to provide bills
to individuals who are using telephones, you should not use that
for another unrelated purpose. The data protection principle is
being violated if you do that. My second practical problem with
it is that there is a proportionality issue if, on the off-chance
that somebody may be seen to be of interest to the Security Service
you collect millions and millions of bits of information on millions
and millions of individuals. How far down that road should you
go and if you do go down that road of saying you will keep the
material for six years, we would want to see greater safeguards
than exist in the Data Protection Act, which are currently that
the police officers can self-certify their right to access to
that. We would say that there should be a judge or some other
independent person who should make decisions about whether access
to that old material is available. That might be a way of balancing
these measures. The National Criminal Intelligence Service were
at one stage talking about different options, one of which will
be to have a warehouse based somewhere which would have all this
information in it and it would not remain with the service providers
but would remain in some other warehouse, controlled perhaps by
NCIS or the police or someone else. That raises alarm bells as
87. Do you follow my point that there are two
separate issues: one is whether you keep all this information,
because if you do not keep it you cannot access it even on the
strictest terms. You are not objecting in principle to the keeping
of the information.
(John Wadham) I am objecting to the keeping
of the information for longer.
88. Therefore we need not worry about the other
matter because it is not possible.
(John Wadham) I live in the real world
and I realise that not everything I say to this Committee will
become law next week. In those circumstances obviously if the
Government goes ahead with this proposal and we will continue
to oppose it, we would obviously want to see safeguards and there
are ways in which some of the privacy implications of this can
be safeguarded and protected.
89. On the off-chance that the Government, however
remote, does go ahead with these proposals, please feel free to
alert us to any safeguards you are suggesting as soon as the opportunity
arises. We are all aware the time frame is rather tight.
(John Wadham) That is a very helpful
suggestion, thank you.
Chairman: Incitement to religious hatred.
90. Are you opposed as an organisation to what
is being proposed, to make incitement to religious hatred an offence?
(John Wadham) Yes, we are. Our concern
is that these measures, apart from being a sop that the Government
wants to throw at the Muslim community, will be divisive, impractical
and breach fundamental issues relating to freedom of expression.
It seems to me that there is a difference between incitement to
hatred in relation to race and incitement in relation to religious
91. Was it not your organisation which was very
keen at a time in the 1960s for a law to be passed against incitement
to racial hatred?
(John Wadham) We have all supported that
92. I thought you did.
(John Wadham) Our concern relates to
two issues: the first is that if you look at those provisions
and the provision about greater sentences for people who have
racial motives, they have unfortunately often been used against
black and ethnic minorities as well as against racists. We are
concerned that we may find that these provisions are first used
against Muslims. We already know that people have suggested they
should be used against Muslims, so I am not sure they are necessarily
going to be a protection in relation to that. Secondly, there
is a difference between racial hatred and religious hatred. In
religious hatred the mischief is actually inciting people to hate
the ideas of a religion. That is something we have to allow. It
is not acceptable, however, to allow people to incite hatred against
race because that is obviously something which is fundamental
to the way a person feels about himself and there is a difference
between criticism, however robust, of ideas and criticisms which
relate to the colour of someone's skin.
93. Do you think in practice say a religious
Muslim sees much of a distinction, if any, between hatred directed
against him, if that were the case, because of race, if he could
be described as belonging to a separate race, and hatred directed
against him and his religion? In actual practice would he see
(John Wadham) If it is the case that
the incitement is directed at him because of the colour of his
skin or because of his ethnic origin, then in fact that is already
a criminal offence and police officers can arrest, charge and
the CPS can prosecute. I do not have a problem, if in fact it
is the case. The second issue is that there is a subtlety which
I think the Government has missed here: currently there is a gap
in protecting the Muslim religion from discrimination. The current
Race Relations Act, the civil law, makes it unlawful to discriminate
against somebody on the basis of their race. For peculiar reasons,
it is not unlawful to discriminate on the grounds of someone being
of the Muslim religion. That is a gap which should be changed.
At the moment it is unacceptable that somebody who is a Muslim
can be sacked for being a Muslim and there is nothing they can
do about it because it is not directly related to their race.
That is the way the courts have decided this. That should be changed
and that is what the Government should do instead of creating
criminal offences which will mean that people who robustly criticise
other people's religions may be in difficulty and may be arrested.
Perhaps they will not be convicted, perhaps the Attorney General
will take the view that they should not be prosecuted, but they
will harassed, they will be arrested and they may be subject to
further prosecution if they are not convicted. Of course there
have been arguments by comedians that they will be subject to
these provisions. That is probably laughable in practice, but
nevertheless it raises the issue. If the Government want to do
more to protect Muslims they have to change the nature of the
discrimination law and they have to make resources, in terms of
the police and prosecution authorities, available to ensure that
where there are attacks, physical attacks or other crimes, including
incitement to racial hatred, the resources are available in those
circumstances. Lastly, I am not convinced that the Government
has been as successful as it should have been in ensuring that
the "Islamaphobia" which has existed since 11 September
does not continue to flourish. Politicians and everyone, including
Liberty, should have been more active at the beginning and I should
like to see more leadership by the Government to ensure that does
not continue. That is the real solution. Changing the law is not
going to change the nature or way Muslims are in fact being physically
attacked on the streets. What we need are more resources to do
94. Do you feel that had the law been as it will
be, if Parliament so agrees, a satire like The Life of Brian,
which hit out in a satirical way at a very secure and established
religion, the main religion in our country, namely Christianity,
would have been in difficulties? I assume you know about it.
(John Wadham) Yes. I hope the reality
is that police officers, the Crown Prosecution Service, the Attorney
General and the courts would avoid that being a problem. We are
therefore reliant on sensible police officers, sensible prosecutors
and sensible courts. Although many of those groups of people in
this country are sensible, thank goodness, we should have a law
which does not allow us to get into those difficulties. It is
for Parliament to protect us from laws which are likely to be
abused and more likely than not to create further tensions between
religions and in some circumstances further difficulties with
supporting the Muslim community in this country. That is an issue
which needs to be addressed. It is all very easy for Parliament
and the Government to change laws. It is much more difficult and
hard work to change people's attitudes and culture. It is the
latter which is necessary and the former not.
(Professor Gearty) Very vocal minorities would use
the law to put pressure on the police and others to act. There
would be a new dimension to the reaction to such movies.
95. Would it be your view that there would be
a danger to free speech, if for example it were argued that, be
it any of the religions, Judaism, Christianity, Islam and so on,
they may be wrong in their interpretation? Would there be a feeling
that could be in danger?
(Professor Gearty) There would be a kind
of chill factor. If you took someone like Salman Rushdie, a whole
lot of private prosecutions would have been launched and thousands
of letters written about prosecuting him for incitement to religious
hatred and there would be a new dimension to the risk involved
in taking on religious icons as it were. I do not know whether
it would end with people in jail.
96. Like what religious icons for example?
(Professor Gearty) Like for example Salman
Rushdie's book or The Life of Brian.
(John Wadham) Some Muslim groups have already suggested
that once this law is in force it should be used to prosecute
Salman Rushdie and his book The Satanic Verses. That needs to
be read alongside the current law where it is already an offence
to incite a crime. So in fact if you are inciting people to assault
other people, that is a crime in itself and can be prosecuted.
It may need resources, it may need a clearer direction from our
chief constables, it may need some assistance from politicians
to ensure that these crimes are dealt with properly, but to go
in this other direction is going to create more problems and does
finally create more problems about freedom of expression in relation
to religion. It is right that religious ideas are criticised and
it is right that religious ideas are criticised robustly. What
we want to ensure is that people do not use violence as a means
of getting at other people who support a different religion and
that is already against the law.
97. I am with you on this one. We do not agree
about the freedom to exclude people from our country but we do
about freedom of speech. Do you think that we need to level the
playing field by abolishing the blasphemy laws at the same time?
(John Wadham) Absolutely.
Chairman: I feel an amendment coming on.
98. I was listening to what you said about incitement
to religious hatred. Do you not think that the argument that this
is different from incitement to racial hatred because race is
something essential to someone's being, whereas religion is not,
is a weak argument? A Muslim feels that his commitment to Islam
is essential to his or her being. Do you not think that should
not be the first argument against this law?
(John Wadham) Some people's religion
is much more essential to their being than others. Some people
convert to religions at different stages in their lives. So I
accept that it is not necessarily different in practice, though
of course it could be different and that is the fundamental thing.
Finally, the issue is about ideas not about colour of skin and
that is different, so in fact what you are criticising about someone
else is actually their ideas, whereas in relation to incitement
to racial hatred you are criticising their skin colour or their
ethnic origin. I think there is a fundamental difference between
those two proposals. I accept that they are in the same ballpark,
but they are something different.
99. Is it not Professor Gearty's argument that
really the problem with this is that it is law as a gimmick, it
is law as a headline. You are going to pass this law, a lot of
people are going to think it is going to make a huge change and
Salman Rushdie is going to go to jail, but actually very little
is going to happen and as a result it brings the law into disrepute.
Is that not the core of it?
(Professor Gearty) Yes and on your earlier
remark about blasphemy, I think that a far more powerful intervention
from our state would be to repeal the blasphemy law which would
be a re-statement of freedom of expression and a reminder that
we stand for something which is separate from religion. The other
does look, as you describe it, a bit gimmicky.