Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 320 - 325)



  Q320  Chairman: Am I right in thinking, though, that the sort of Parliamentary role that you would like us as members of Parliament to play does require some quite profound reworkings of the way in which Parliament operates? You are fairly regular witnesses, all of you actually, to this Committee. You know the Select Committee's strengths, but also we are not full-time, we have many other commitments. How realistic is it to ask Parliament, as you actually see it, to play the sort of level of scrutiny role that clearly you all think in one way or another is the answer to some of these problems? I am not saying it is wrong, but it is a major change, is it not, to the way in which the Commons, in particular, works?

  Ms Chakrabarti: Yes. There are general problems, but also there is a great opportunity at this moment to address some of them because we have a new Government and a new Prime Minister talking very much about trying to enliven Parliament. Privacy is a particular area, for the reasons we have discussed, that would benefit. I think you may at some point consider having a specific privacy committee just because the terrain is so considerable and the issues are not just constitutional, they are technological. So, with respect to your wonderful staff, you may consider some enhancement in your resource to do that job. I personally, and Liberty, would like to see the Information Commissioner enhanced too, and we would like to see the Information Commissioner report to Parliament, be appointed by Parliament, and that could be true with some of the other public roles of that kind, but I think privacy in particular is such a qualified right, it requires such a constant public policy balancing act that Parliament really is going to be the court that enhances and defends it.

  Q321  Mr Benyon: In relation to the point that Dr Metcalfe was making a moment ago about the wish that both your organisations want to have, transferring the power to intercept communications from the Home Secretary to the courts, you are quite happy to quote polling evidence that supported an argument that you made earlier. I suggest that the thousands of my constituents that use public transport in London, if they were polled on that, would say they would prefer it to stay with the Home Secretary because, if it went through a judicial process, it would be likely to take longer and, therefore, might put them at more risk, and at least they can get rid of the Home Secretary, if they feel he is failing, because he is elected. What do you say to that approach?

  Dr Metcalfe: If there is specific criticism that prior judicial authorisation takes longer, it is worth pointing out that in Canada, Australia and the United States it is possible to get an emergency warrant without prior authorisation so long as the agency goes back to the court within 48 hours, sets out the reasons why they had to act as they did, given the nature of the emergency, and explains to the court what happened.

  Ms Chakrabarti: It is not a full-blown criminal trial we are discussing here, it is just about who you trust to make this authorisation in a particular context, and we think one way to add to trust is to say a judge, not a High Court judge, perhaps something more akin to a magistrate—. It just seems appropriate that, where it can see such an intrusion with the individual, this is a particular role, this is something that a judge could do. There are many times in the context of anti-terror legislation where you and your colleagues say to the public a control order, or this, or that, or other measure would be enhanced by judicial involvement. Sometimes we at Liberty and JUSTICE agree with you, sometimes we do not think it kills the defect, but we do think that these issues of trust can partly be enhanced, not necessarily, as I say, by a very involved process, but by a judge, not a politician, issuing the warrant. We also argue in other contexts that there could be greater use made of Intercept product in criminal trials, and that is a debate that rages elsewhere, including in this Committee. So, if that were to happen, and that debate is being conducted, you are going to see greater transparency in any event.

  Q322  Mr Benyon: Very quickly, you are saying you can have greater safeguards and a speedy process?

  Ms Chakrabarti: Yes, you can.

  Q323  Mr Benyon: As opposed to what we have at the moment?

  Ms Chakrabarti: It is just about who constitutionally might be the better person to issue the warrant. When you search people's houses, as the police do and as they must do, because they have contraband or there is evidence of criminality, that is a warrant that is issued by a magistrate. Nobody finds that odd.

  Dr Metcalfe: Courts make emergency orders all the time and late night injunctions. You have judges who are available 24 hours a day to grant injunctions or to make orders. It would be no different with intercept.

  Dr Pounder: Can I add that you have the Home Secretary responsible for these organisations that interfere as well as the safeguards. This is an example of where you need to separate the two.

  Chairman: Margaret Moran, last question.

  Q324  Margaret Moran: This is to Dr Pounder. I think we have touched on the issues and you have referred to the data protection response being not up-to-date, increasingly disjointed, with the changes in government services being more joined up and, indeed, the technology. Some would argue, indeed some of the earlier witnesses and some of the research that has been done, that the greater problem is not so much increasingly disjointed data protection legislation as ignorance of what the data protection actually says. Can you comment what you would do in respect of the issue of disjointed data protection and the role of the Information Commissioner?

  Dr Pounder: I did not catch the last part of the question?

  Q325  Margaret Moran: What would your response be? What would you be looking to do in respect of what you see as increasingly disjointed data protection legislation, and if you wanted to comment on the role of the Information Commissioner in that context?

  Dr Pounder: There are two elements. One of the problems, and why I think the Data Protection Act is in a sense weak, is that it is legislation that Parliament enacts because of the scrutiny element. For example, if you look at the data protection principles, there are many that use the word "purpose". So if you have a broad purpose, for example "efficient, effective delivery of public services", that actually negates the principle, so the Information Commissioner cannot do anything. What I would like to see from the Information Commissioner's perspective is the ability for him to exercise powers of audit, and I think the Commissioner has asked those. In relation to misuse of personal data, I think that the Commissioner should be able to have enforced, shall we say, powers of prosecution. One thing I would say on the transparency area: the Government knows that the European Commission has started, or begun, or threatened infraction proceedings that the Data Protection Act is not a proper implementation of the Data Protection Directive and for two or three years all attempts to get to why the European Commission thinks the UK Data Protection Act is defective has basically come to nought. Of course, the Data Protection Act is central to what we are discussing today. One thing I would ask the Committee to do is to find out why the Government is refusing to publish the letter sent from the European Commission to the Department of Justice explaining why it thinks the UK Data Protection Act is deficient and the UK Government, for its part, to publish why it thinks the Data Protection Act is a proper implementation: because I think that would help sort out quite a lot of the problems of understanding how data protection relates to the `surveillance society', as it is so-called.

  Chairman: Thank you. That is a very helpful suggestion. Can I thank you very much indeed. I think it has been an extremely useful morning from both sets of witnesses, but particular thanks to the four of you.

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