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19 Mar 2009 : Column 321WH—continued

3.50 pm

James Brokenshire (Hornchurch) (Con): I wish to continue the theme that the hon. Member for Carshalton and Wallington (Tom Brake) ended on. The phrase “sleepwalking into a surveillance society” is precisely the one that the Information Commissioner, Richard Thomas, used. He subsequently questioned whether we had actually woken up in one. Perhaps those questions were in the minds of members of the Home Affairs Committee, on which the hon. Gentleman and the right hon. Member for Leicester, East (Keith Vaz) sit. The questions about the kind of society that we live in and whether it is a surveillance society predated the right hon. Gentleman’s chairmanship of the Committee.

This debate is important. I welcome the publication of the Select Committee’s report and this opportunity to discuss issues that are fundamental to the Government, the citizen and society: what kind of country we want to live in, and how we achieve a balance.

The right hon. Member for Walsall, South (Mr. George) said that he was wrestling with the issues. He would rely on a benevolent state to get the answers right, but I would not want simply to rely on the benevolence of any one individual, party or Government. It is important to get the regulatory and legal framework right. There must be checks and balances through the judiciary and the courts to ensure that fundamental safeguards exist
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so that, at a time of crisis, arguments cannot be deployed that are later difficult to unwind. Otherwise, fundamental principles and beliefs, and the characteristics that define our country, could be eroded. Once lost, they would be difficult to reassert and re-establish. That is why the report and the issues that it touches on are essential, and why it is important that we engage in this debate this afternoon.

There is little doubt in my mind or, I am sure, in the minds of many other hon. Members, that technological advancements in electronic communications and information technology, and other scientific advancement in areas such as DNA, can offer huge benefits to society. This is not simply some argument pitting the technophobes against the technophiles, or the technology luddites against the technology sophisticates. These are difficult issues that we must address. We must weigh up the overall benefits against the impact that the growth, speed and pace of change may have on all of us.

One of the fundamental reasons why this debate is important is that people have not had much chance to stop and think about the changes—they have simply happened. Yes, they have been incremental, but the pace of change has been fast and steady. No one has been taking stock, examining or thinking whether we are going where we want to go. It is almost as if we are on a journey from A to Z. We are now at Q and asking whether Z was where we started off wanting to go. Was it the intended end point?

That is why, in the context of all the different facets and issues, it is right and proper that this House, the Government and the Opposition examine the issues carefully. Some of the decisions and choices that we make now will set out a road map that it will be difficult to depart from in the future.

Keith Vaz: I congratulate the hon. Gentleman on the eloquent way in which he began his speech. At some stage, there obviously will be a general election, and if—I use the word “if”—the hon. Gentleman’s party were successful, he would be the policing Minister and responsible for these issues. Is he giving the House an assurance that, should the Conservatives get into government, there would be no further extension of data collection until there had been a suitable pause to consider whether the data that we have at present are sufficient?

James Brokenshire: I hope that the right hon. Gentleman will see from my comments, the policies that will be announced and the other statements that will be made in the coming weeks and months that my party takes these matters extremely seriously. We recognise the fundamental challenges that I have alluded to and the need to set out clearly our thoughts, positions and approaches. It would be difficult and churlish of me to say yes or no in the broader sense, because we need to examine and analyse each of the different facets and issues extraordinarily carefully. There are competing arguments about each of them. Therefore, I do not think that simply taking a blanket approach, as the right hon. Gentleman suggests, would be responsible or appropriate. I hope that my comments will allow him to see some of the direction of travel, approaches and thoughts that my party has on some of these essential issues.

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Tom Brake: The hon. Gentleman spoke about a breathing space in which we can discuss the issues. However, does he share my concern that technology is moving so fast that we can allow ourselves only a very short breathing space before some new technology comes along?

James Brokenshire: The hon. Gentleman made an interesting point about some of the techniques that are being established. People suddenly wake up one morning to find that their house can be searched for on something like Street View, which they did not even know about. Equally, they do not know that there is a facility to have their house removed from such searches. From my discussions with Google, which has been very clear about this, that kind of picture can be removed if someone is concerned about privacy issues.

The issue extends further than that: for example, to social networking sites. Our debate about the surveillance society is dominated by discussion about the Government. However, we must look at what is happening in not only the commercial sector but in people’s interaction with each other. What are the social mores and norms? Is it right and proper to post a video on YouTube of someone one has never met and does not know? What are the take-down procedures, and who makes such decisions? Those are delicate and difficult challenges that this House must address quickly.

I do not intend this afternoon to set out a manifesto on specifically how those issues should be dealt with, because they require careful consideration, as does defining what we are trying to do.

Sir John Butterfill (in the Chair): Order. I would be grateful if the hon. Gentleman did not proceed down that line, because it is not within the terms of reference of this debate. Nor are future policy statements from any of the political parties represented here part of this debate. We are debating the Select Committee report.

James Brokenshire: Thank you, Sir John, for ensuring that we stay in order. I apologise for being led down that road by other hon. Members.

Tom Brake: Unintentionally.

James Brokenshire: Unintentionally, I am sure, but our discussion of this report on the surveillance society has highlighted that surveillance can extend in many different directions. At this stage, we may not have fully accepted, acknowledged or followed through on some of those. I hope that you will accept, Sir John, that the argument, although it strayed a bit far, gave the sense that this is a broad debate and that this afternoon we may be looking at only one part of it.

Information sharing can be hugely beneficial to people. When debating issues around privacy and surveillance, it is important to discuss the benefits that information sharing and data retention can have, as well as the ways in which they can prove to be intrusive. I am sure that the Minister will rightly use the example of the Soham murder inquiry, in which major deficiencies were found in how the police shared information. Several improvements were made to the way in which our law enforcement bodies share information and communicate with each other as a consequence of, we hope, some of the lessons that were learned. However, the question is whether
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there is then a drift—a further extension that may not achieve the appropriate end results or focus on the purpose for which the initiatives were established. Their extent, scope and purpose characterise the debate, and we very much welcome the opportunity to debate them this afternoon.

The challenge is due to the fact that the pace of change in technology has not been mirrored by the pace of change in public attitudes and debate or, indeed, in the legislative and regulatory framework to govern this highly sensitive area of life. There has been incremental change, but the import and significance of such steady change has been recognised or understood only comparatively recently. There has not been a chance to question whether we want or need such a society.

The debate should not simply be framed in terms of the activities of the Government. It is not only the state that can be over-zealous in its surveillance or data-retention activities; private companies that capture data or information about customers for marketing or other purposes, for example, can overreach themselves or cause significant harm if such information is not secured safely or disposed of effectively. In that context, it is important to recognise the work of the Information Commissioner, Richard Thomas. There is little doubt about his contribution to advancing what is an essential debate, or about his continued work in clamping down on issues about information security and an individual’s right to privacy, and in allowing the debate to take place and to further the issues.

The question is about how the Government respond to the debate, and about the wider context of government: the way in which they deliver services in the digital age, and store, retain and share information on all of us. The Committee rightly fastened on to the crux of the argument when it said that

Notwithstanding the Government’s statement on openness and their proposals to create an “ask only for what we need” charter for Departments, the current orthodoxy is, I am sorry to say, based on the concept of “need to know”: the Government need to know everything and retain as much information as they possibly can for the more effective provision of welfare, health, education, security and all the other facets of public sector activity; and the state needs to have the ownership rights over that information to do with it what it judges appropriate.

That mindset underpins the national identity card, the interception modernisation programme, the NHS records database and the controversial proposals, debated in Parliament this week, to permit Departments to share such information that they hold with whomever they think fit. I welcome the fact that the Justice Secretary has determined to shy away from those proposals, but that very orthodoxy contains huge dangers and needs, as the Committee’s report rightly highlights, challenging and rethinking in the strongest terms—not just on civil liberties grounds, which are important enough in themselves, but on the ground that the orthodoxy puts us all at greater risk.

The creation of ever bigger stand-alone databases, with their concentration of comprehensive personal data in one place, actively establishes a system that is valuable, vulnerable and attractive to attack. That risk
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is magnified if data sharing is adopted haphazardly and without consideration of the potential weakest link in the data-sharing chain. The more data that are collected and stored in one place, the bigger the challenges in keeping them safe. We have already seen the risks, as other hon. Members have noted this afternoon. In the past year, information on 30 million people has been lost, and public officials are being sacked or disciplined for data protection or data security breaches at the rate of one every working day.

That is why the Conservative party said that it would create an offence of reckless handling of personal data by the Government, potentially making it an offence for a Crown servant or Government contractor to lose personal data under their control. Unless we rethink and re-engineer the centralised model, we will create huge problems for ourselves in the years ahead. What happens when the information is no longer useful or appropriate? Will the systems that are intended for the information be resilient in 10, 20 or 30 years’ time? How do we safely dispose of sensitive information once we have it?

I was rather amused by a recent article in the consumer magazine Which? on the best way to ensure that sensitive information on one’s computer is safely deleted. Apparently, its advice is that the only foolproof, guaranteed way to ensure that one’s personal data cannot be accessed by anyone else when disposing of one’s PC is to get a large hammer and bash one’s hard drive until it has been smashed into little bits. It is a cautionary parable. Are we really thinking far enough ahead about the implications of our decisions about our data systems? Clearly, there will not be a big enough hammer to take to some systems that we are creating. I am concerned about whether the Government—not necessarily just the Home Office—are thinking the matter through. I liken the current approach to the digital equivalent of digging a bigger and bigger hole and filling it with potentially toxic material without proper consideration of long-term containment, the significant damage caused by leaks and how long the material will need to sit there before it becomes benign. What seems like an asset risks turning into a big long-term liability, and the problem will not be confined to the public sector. The structural solution to the challenge of rethinking the architecture of our IT systems will not be found by the arms of the state or by the private sector acting in isolation.

We also need to think more carefully about the purpose, scope and extent of data sharing. Let me be clear: I am not opposed to data sharing in principle; indeed, I believe that data sharing can be essential for providing greater public protection. However, it must be specific, not general, and its purpose must be clearly defined, with data security and data protection at the forefront. That is why I welcome the Government’s retreat this week from seeking blanket data-sharing powers based on ministerial edict. I hope that they will similarly retreat from policies on the retention of DNA data by ministerial order, because that is equally unacceptable.

The Government have been expanding the DNA database that records the DNA of anyone arrested in England and Wales, regardless of whether they are acquitted or found guilty. The data are recorded indefinitely, and they will be removed only in exceptional circumstances.
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Indeed, hon. Members will know that only a small number of people have managed to have their data removed from the DNA database by demonstrating exceptional circumstances to chief constables. We agree that the use of DNA samples can be an important evidential tool in prosecuting and bringing crimes to justice. We are all aware of circumstances in which DNA data have formed an important part of the case to prove guilt or, indeed, innocence, thus ensuring that serious criminals have been put behind bars, where they belong.

The fight against crime, particularly organised crime and terrorism, depends on the use of modern scientific techniques of investigation and identification. However, the status of DNA needs to be considered carefully, because, as the European Court of Human Rights has noted:

The use of that technology must strike the right balance between the promotion of public interest and public safety and the protection of important private-life interests.

The UK’s DNA database is proportionately the largest in the world, accounting for about 7 per cent. of the UK population. The Government argue that this country can claim a pioneering role in the utilisation of DNA technology, but, in doing so, they bear a special responsibility to ensure that they strike the right balance regarding what is permissible, given the potential interference in private life. That is why last December’s European Court of Human Rights judgment regarding S. and Marper was so fundamental. The Court was scathing in its criticism of the current approach of indefinite retention regardless of guilt or innocence, and it dealt with the structure—the fundamental protections and reviews; it did not say that the issue could be dealt with case by case, as the Government’s initial comments seemed to suggest.

What I am saying will not be unfamiliar to the Minister. We have debated these issues before. I am asking the Government to rethink responding to the Court judgment with an order-making power that does not require full parliamentary scrutiny. They said that they want an open debate on this subject. Let them rise to that challenge, rather than push this issue out of view with a vague promise to publish a forensics White Paper by the summer.

Keith Vaz: The hon. Gentleman is right that this is a fundamental issue that must be addressed. In the meantime, there must be a process for dealing with such cases. People should be able to write to a chief constable and receive a detailed response. The policing Minister is present. He or the Home Secretary could write to the 42 chief constables to remind them of their responsibilities. When people write in, they should write back with an explanation.

James Brokenshire: The right hon. Gentleman has made an important point. When my colleagues in the other place debated the counter-terrorism DNA database during the passage of the Counter-Terrorism Act 2008, they made exactly that point. They tabled an amendment to ensure that people could find out what information was held on them on such databases. It is important to
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establish what information is there and to be clear about how to challenge that. There must be a process to ensure that arguments can be raised on the removal of such information if appropriate.

Today’s debate is timely. The Government have informed the Committee of Ministers of their intention to consult and of their compliance to date with the judgment in respect of the relevant samples of S and Marper, as well as the payment of their costs and expenses. That information was considered by the Committee of Ministers today. Can the Minister say anything about the outcome of that meeting? Given this opportunity, will he update us on the Government’s progress in removing the DNA of children under 10 from the DNA database, as was outlined in the Home Secretary’s statement before Christmas?

Mr. Coaker: I was going to cover that matter in my closing remarks, but I will clear it up now. I have been told that all DNA of under-10s has been removed from the database. That also answers the point made by my right hon. Friend the Member for Walsall, South (Mr. George).

James Brokenshire: I am grateful for the Minister’s response. It is helpful to know that. As he will appreciate, the sensitive issue of the over-representation of children and people from minority ethnic communities has been highlighted. This matter needs to be properly debated in Parliament and appropriate safeguards must be put in place. That opportunity will not be forthcoming if the matter is dealt with by statutory instrument.

Two other Government reviews and consultations on these matters are up in the air. There is a consultation on the interception modernisation programme, which is the Government’s plan to store all our e-mail communications on a new central database. Some have described it as the Big Brother database.

There is also a consultation on the use of the Regulation of Investigatory Powers Act 2000. That Act was originally introduced on national security grounds, but we believe that its powers now have an abusively wide scope. The reasons for accessing and using our data have been extended to include the prevention and detection of crime or disorder, economic well-being, the protection of public health and tax collection. RIPA gives all 474 local councils in England, every NHS trust and fire service, 139 prisons, the Environment Agency and even Royal Mail the authority to access and use communications data. It is not confined to services working to protect national security. That has led to RIPA powers being used in investigations into a wide range of matters that most people would consider to be utterly inappropriate, such as whether pot plants have been sold unlawfully, dog fouling and issues of refuse collection. Even the Home Secretary has described her concerns over the use of RIPA by what she called the “dustbin Stasi”.

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