Examination of Witnesses (Questions 320
TUESDAY 26 JUNE 2007
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.