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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