Coroners and Justice Bill

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Q 151Mr. Boswell: A subset of concerns exists on that matter. While matters are within the public sector, there are certain obligations over and above the Data Protection Act in terms of confidentiality. At one level there is the Official Secrets Act. There are certain criminal procedures in the Taxes Act about the disclosure of people’s personal files. Is there a danger that as this material is available to people within the private sector under the data-sharing order, the controls that are built into legislation would be attenuated? That is point one. Point two is that if the information were further disseminated within the private sector, perhaps improperly or outside the terms of the order, it would leak out widely and become public knowledge.
Anita Coles: Yes, there are protections in a lot of other legislation but there is the power here for an order to modify any enactment, which could mean that it could amend any other safeguards. There is already the potential for those safeguards not to apply. We also have problems, as we have seen, with the Government’s handling of sensitive information. We have seen losses, and the more the information is disseminated the more potential there is for it to go missing or for other problems to arise. We think that extending the measure even further, including extending it to potentially require private companies’ confidential commercial information to be distributed, is not necessarily helpful.
Q 152Mr. Boswell: I presume that it could even come back in court proceedings if they had acquired it illegitimately.
Anita Coles: There is nothing to say that it could not. Nothing in the Bill states how the order is to be monitored. The Information Commissioner does not necessarily have any powers to monitor the carrying out of the order and how it is effected. The code of practice in clause 153 will not necessarily apply to the order because the order can modify anything, including the code of practice.
Q 153Mr. Garnier: Do you agree that behind all this stuff in part 8 to do with data sharing, there are some concerns? First, the Government have an appalling record on the keeping of private data private. They have lost millions of pieces of information over the past few years. The public ought to be allowed to press the Government on that.
Secondly, I am glad, Miss Coles, that you mentioned the Identity Cards Act and the national identity register. On that Bill, in 2005-06, we had, from my point of view, utterly fruitless discussions about the register. It became clear that the Government would require huge volumes of private information to be stored on that register, and that that information would be shunted about between Government agencies and also potentially, according to the Office of Government Commerce, between 40,000 private companies about whom the public would have no knowledge. The movement of that information could not be audited by the public. So here we have something that is designed for the convenience of the Government rather than for the protection of the citizen. Do you not see in part 8, as well as in other legislation such as the Identity Cards Act, a rather hideous shift in the balance between the state and the individual, a balance that we as legislators ought to be extremely careful to protect?
Anita Coles: Yes. I think that you have put it well, in that to start with we are very concerned about data loss, the security of people’s private information and the erosions of privacy over the past couple of years. Liberty has been concerned about the national identity register and ID cards ever since they were proposed. We think that they alter the relationship between the individual and the state. There is now the presumption that we have to share all our information rather than being able to keep something private unless it is required. Everything has to be shared. The limits are expanding and there are problems with how they have expanded over the past decade or so. So this is just part of that process and we are seriously concerned about it.
Q 154Mr. Garnier: Do you share—I think that you do—my concern that the way in which the legislation, particularly in part 8, is constructed provides Ministers with the power to make legislation without proper scrutiny by either House? Have you noticed the growing habit of Government Departments to create legislation within which they give themselves powers to create secondary legislation? Here we have a particularly egregious example because this is secondary legislation that amends primary legislation. Does your organisation find that worrying?
Anita Coles: It is very worrying that secondary legislation can amend primary legislation. The point is that Parliament is meant to be involved in making legislation and that any amendments to it should go through a proper parliamentary procedure where it is properly debated. The use of Henry VIII clauses where primary legislation can be amended through secondary legislation is extremely concerning. There has been far too much of it in the last few years. Parliament itself should be concerned about that.
Order-making powers are used by the Executive, whereas legislation should be made by Parliament. Obviously such measures are subject to the affirmative procedure, but that means that Parliament cannot amend the proposed orders. Parliament may agree with 90 per cent. of what is in the order and not the other 10 per cent., but it has no way of amending it. Parliament may then consider on the basis of a very short debate that it is better just to pass the order so that certain laudable objects go through rather than oppose it so that the matter that it is concerned about does not. We think that Parliament should have the ability to decide what legislation should be amended.
Q 155Mr. Garnier: Do you also agree with me that we are highly unlikely to see any of these orders in draft before the Bill is enacted? We are therefore being asked to give the Government powers to create secondary legislation to do all sorts of things that we may or may not approve of through a procedure that we may or may not approve of without knowing precisely what powers the Government will take unto themselves. Is that not equally worrying?
Anita Coles: The problem with having legislation that would enable such broad-ranging powers is that you will never know what it will be used for in the future. If it is passed, the Bill will be on the statute book for who knows how long. You will never know what powers will be used until the orders are made, at which point Parliament does not have an amendment process or a full debate on the issues involved. Even if you saw some draft orders now, it would not be sufficient because we do not know what orders might come up in 10 years.
The Chairman: We have three minutes left of this session.
Q 156Mr. George Howarth: One of the witnesses earlier invoked public opinion and said that they thought it was opposed in principle to the use of data sharing. Was it Miss Sankey who said it?
Isabella Sankey: We have found, as an organisation that does a lot of work on privacy and rights in this area, that the public are becoming more and more concerned about the way in which their information is held by Government, who has access to it, and the security of it.
Q 157Mr. Howarth: Thanks, that is a helpful clarification. Do you accept that public concern about data sharing is practical rather than a matter of principle? They are afraid that personal data will be lost, which we have seen some examples of in Government Departments, or that it might be used inappropriately. Do you accept that in cases where it helps to pursue somebody involved in serious organised crime, the public would probably take an entirely different view of the use of data sharing?
Isabella Sankey: Absolutely. The example you gave is in an area in which information can be passed without consent. There is no question that in certain circumstances, for the prevention and detection of crime, information can be shared. We see that between different policing bodies all the time.
Q 158Mr. Howarth: So it is not an absolute principle then.
Isabella Sankey: Well, there is a principle that information needs to be shared only where it is necessary and proportionate. In that sense, the principle is absolute.
Q 159Mr. Howarth: But it is a qualified principle, is it not?
Isabella Sankey: Of course, privacy is qualified, as are most of the rights in the Human Rights Act. That does not mean that an order-making power that asks you to rely on the Government striking that balance themselves in any given situation without the scrutiny of Parliament will be okay. The proportionality as to when and how information can be shared is something that must be scrutinised by Parliament.
Q 160Mr. Howarth: You put it to the Committee earlier that it is an absolute principle.
Isabella Sankey: Liberty would never say that privacy is an absolute principle. We said that the public are concerned about their privacy, which is entirely different from saying that privacy is absolute.
Mr. Howarth: Well, the record will show differently.
The Chairman: Order. I am sorry to interrupt, but the Committee has decided that this session must end at 6.15 pm. Anita Coles and Isabella Sankey, thank you very much. The Committee has benefited from your advice and information, and we are indebted to you. I hope that you have a safe journey home. Can we call the next witnesses please, as quickly as possible?
6.15 pm
The Chairman: Order. Let us welcome Barbara Esam from the National Society for the Prevention of Cruelty to Children, Martin Narey, chief executive of Barnardo’s and Peter Robbins, the chief executive of the Internet Watch Foundation. Thank you for joining us and giving us your time. I will ask Jenny Willott to open the questions.
Q 161Jenny Willott: I have got a couple of questions about the provisions in the Bill that relate to child pornography and images of child sex abuse. First, I would be grateful if one of you could tell us what evidence there is that harm is caused by people owning non-photographic depictions of pornography involving children.
The Chairman: Who would you like to respond? Put a question to somebody.
Jenny Willott: I do not mind. When there are photos of children being abused, it is very clear that abuse has taken place and that there is a victim. However, when it is a non-photographic image and no direct victim has been affected, the purpose of making that illegal would be because looking at such pictures causes some sort of behaviour change, which then causes harm. I would be grateful if you could provide any evidence to back that up in respect of why looking at such pictures should be made illegal, given that there is no direct victim. Does that make sense?
Martin Narey: That is not a subject about which I am able to advise the Committee. I understood that I was here to speak about the sentencing council provisions. I am afraid that I know very little about that subject—I did not expect to be asked about it.
Barbara Esam: I am afraid that I am in the same position. This is my first day back from holiday and I expected to be asked about young witness issues. There are other people within the NSPCC who are briefed on that, but I am not one of them. I apologise for that. I can certainly get a written response from the NSPCC.
Jenny Willott: That would be great.
Barbara Esam: I understand that there is generally considered to be a process whereby paedophiles escalate their activities. There is therefore a concern about that type of material, even where there is no victim. It would be more appropriate for me to ask another member of the NSPCC who has been dealing with that issue directly, as I have not been.
Q 162Jenny Willott: I have a question about the distinction between possessing and viewing images, which is probably most relevant to Mr. Robbins. The Bill deals specifically with the possession of certain types of images, but as I understand it, one of the biggest areas of development is that people can go online and view those images there—they do not necessarily have to physically possess them. With regard to the internet, should a distinction be made, and does that need to be clarified, so that it is possible to prosecute?
Peter Robbins: The Protection of Children Act 1999 includes the making of an image as an offence, and generally speaking the law prosecutes people in such cases with the offence of making indecent images of children, but that does not apply in this case because the Government obviously intend to make possession an offence. That mirrors the recent legislation relating to extreme pornography, as the Government were faced with the fact that there are many thousands of websites of that type outside the UK—we very rarely find any of those sites hosted in the UK.
The Government decided that there needs to be a strategy for dealing with the possession of those images. That cannot be handled with a global partnership approach for taking down and removing those images, because in many countries hosting extreme pornography and computer-generated images is not a crime. We do not have a partnership with other countries that would allow us to do something about it, unlike the indecent images, which we can do something about. That is why there is a distinction between the offence of possession, which the Government propose in the Bill, and the offence of making an indecent image, which is what applies in a real trial.
Q 163Jenny Willott: If the harm is done by looking at the images, do you have concerns that the offence will mean that people will simply not possess the images, but would still be able to look at them?
Peter Robbins: That becomes a legal argument about what is tantamount to a possession offence on a computer device. If you keep something you have downloaded, it becomes a possession offence and you can be prosecuted for it. If you are accidentally exposed to it and then delete it, that is fair enough and no one would expect you to be prosecuted. However, if you regularly download such material and continue to delete it, your computer history will show that and you will be prosecuted. Constructive possession on a device can be proved by forensic analysis.
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