4 CCTV and the right to respect for
private life (Article 8 ECHR)
106. Part 2 of the Bill proposes the introduction
of a surveillance code covering the operation of CCTV by public
authorities in England and Wales and the creation of a Commissioner
to promote compliance with the Code. The Code will operate as
a mechanism of self-regulation and the Bill creates no new offences
or sanctions associated with the Code. The Code will be set by
the Secretary of State. However, the proposed Commissioner will
be responsible for monitoring compliance and will be able to make
recommendations for its amendment or other steps necessary to
increase its effectiveness. The Home Office published a consultation
paper on the substance of the Code in March 2011. Automatic
Number Plate Recognition technology will also be covered by the
Code. The Consultation proposes that the Code will cover pre-planning
and standards to be deployed in CCTV, the implementation of the
Code and data protection. The Consultation document is clear that
the Government intends to take an incremental approach to regulation
and that that the approach in the Code may be revisited in light
of experience, including to consider extension to the private
sector and the operation of CCTV technology in semi-public places.
The Consultation document is very open and asks for stakeholders
to highlight particular areas for potential regulation which they
consider are important.[80]
107. The use of CCTV and the utilisation of data
recorded on it engage the right to respect for private life (Article
8 ECHR). However, in some circumstances, a limited interference
with individuals' private life may be justified in the interests
of the prevention of crime and disorder or the protection of the
rights of others.[81]
Over the past few years, a number of parliamentary Committees
have expressed concern about the expanding use of surveillance
and specifically, the use of CCTV in circumstances which might
be considered a disproportionate interference with the right to
respect for private life.[82]
108. We note that the proposed Code will only apply
to the public sector. During debates in the House of Commons Public
Bill Committee, members noted the significant proportion of CCTV
use in the private sector. The Information Commissioner has specific
responsibilities in connection with the operation of CCTV cameras
in both the public and private sector, in so far as the technology
involves the processing of personal data protected under the Data
Protection Act 1998. The Commissioner has already published his
own non-statutory code on the use of CCTV and his responsibilities
under the Data Protection Act 1998 will continue.[83]
The Information Commissioner's powers include compulsory
powers of sanction. The new Surveillance Commissioner will not
have similar powers in connection with the proposed Code.
The intended relationship between the two Codes and between
the Surveillance Camera Commissioner and the Information Commissioner
generally, was the subject of debate in Committee but was not
resolved. Giving oral evidence, the Information Commissioner highlighted
the need for joint working and clear memoranda of understanding.[84]
In its Human Rights Memorandum, the Government explains that it
intends that the two Commissioners will work together, with one
or multiple Codes, and that the Information Commissioner will
continue to retain responsibility for enforcing the Data Protection
Act 1998.
109. We welcome
the decision to introduce new regulatory measures in connection
with the operation of CCTV. Whether the Code will help strike
a of a proportionate balance between the rights of individuals
to respect for their private lives and the wider interest in the
prevention and detection of crime is difficult to assess without
seeing a final draft of its proposed content. We welcome the decision
to subject the Code to the affirmative procedure for Parliamentary
approval. However, we note that by limiting the application of
the Code to the public sector, its impact may be restricted. Since
the Code is self-regulatory, the Information Commissioner will
continue to have a very important role in connection with the
protection of personal information gathered by means of CCTV.
The Information Commissioner and the proposed Surveillance Commissioner
will need to have a close working relationship in order to ensure
that the requirements of the Data Protection Act 1998 and the
measures in the Code are consistent and complementary. We recommend
that the Information Commissioner is closely consulted in the
finalisation of the CCTV Code.
110. The consultation document recognises that concerns
about the processing of personal data gathered during CCTV recording
(and associated interferences with personal privacy) will be particularly
acute in certain places, for example, in schools or hospitals.[85]
This Bill introduces a detailed scheme for the governance of the
use of children's biometric information. (We consider these measures,
above). It is arguable that the use of CCTV in a school environment
and the storage of children's images in associated recordings,
raise similar risks to privacy and should require clear consent
of children and their parents. Unfortunately, there is nothing
in the consultation document that suggests whether or not it will
address distinct guidance to specific public authorities where
the use of CCTV may pose a greater risk to personal privacy, for
example, in schools, residential care homes and hospitals. We
welcome the recognition in the consultation on the proposed Code
that specific guidance may be necessary in particular contexts.
We recommend that the Code should include information on the use
of CCTV technology in schools, residential care homes and healthcare
settings, where risks to private lives of pupils, residents and
patients may be heightened.
80 Home Office, Code of Practice relating to Surveillance
Cameras, March 2011. http://www.homeoffice.gov.uk/publications/consultations/cons-2011-cctv/
Back
81
See, for example, Peck v United Kingdom (2003) 36 EHRR
41. Back
82
See, for example, House of Commons Home Affairs Committee, Fifth
Report of Session 2007-08, A Surveillance Society. HC 59;
House of Lords Constitution Committee, Second Report of Session
2009-09, Surveillance: Citizens and the State, HL 18. Back
83
Information Commissioner, CCTV Code of Practice, 2008. See also
Ev 129. Back
84
HC PBC Deb, 24 March 2011, Cols 96-99. Back
85
Ev 129-130 Back
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