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Where will new developments and experiences take us in the next 10 years or so? Will they be as acceptable, subject to some tightening of regulation and supervision, as the astonishingly rapid developments of the past decade have become? I fear that it is unrealistic in this digitally evolving age to attempt, Canute-like, to reverse the tide of digital development. At best, it is more sensible to attempt to control what we now have more carefully, and to consider closely the overall implications of new proposals and ways of exploiting digital developments.

What might happen in the next decade? First, loss and misplacement—let alone improper use—of any number of data banks must remain a reality. There is no way totally to eliminate such mistakes. They are as much a part of human frailty in this field as in any other, where for good or ill, mistakes and/or corrupt practice, such as hacking, cannot be ruled out. Such losses will continue and have to be accepted as a hazard of data storage, retrieval and transmissions. There may be a media outcry which will last for a few days, but unless national survival is seriously threatened, the loss will be mentally archived or forgotten. Personal privacy may have suffered, but life will go on.

There are EU proposals to fit all vehicles with a transponder, whereby their whereabouts, their speeds on the open road, information about hold-ups on the driver's planned route and so on could be collected, collated and disseminated to the driver to aid his journey. But such data collection could also be used to impose fines for speeding, jumping lights, illegal parking, or road congestion charging. Would the perceived benefits of making journeys easier and timings more predictable outweigh the certainty of punishment for every minor traffic offence? Will we really ever become that much more self-disciplined?

German research on ways of applying road charging ruled out the use of cameras that would image the driver and passengers from the front. It was deemed to be an infringement of personal privacy. Who knows who the driver might be taking out for an evening’s entertainment unknown to other members of the family? The British citizen, it seems, is more phlegmatic about camera coverage than some on the continent.

Mobile phone records also pinpoint the user’s location globally, and provide a geographical tracking log for the phone. Technically, much more can be extracted from this and other communications data, but the key issue is who has access to profiling such a database and how it is regulated. The police force in my home county, Norfolk, is to fit electronic tags to its police radios and vehicles. Combined with equipment which pinpoints the location of 999 callers, the police will achieve faster response times than before by identifying and contacting the patrol nearest to the scene. I am not aware of any adverse reaction from police officers who will be tagged, much as some prisoners on home release are today.

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Such technologies might have much wider applications. We know that cats and dogs are routinely fitted with an embedded chip programmed to give details of the owner’s name and address. Now the EU wants all sheep to be tagged. Tagging humans would be unacceptable today, but after another decade or more, I wonder. If all people were to be chipped at birth, the information could be used for a variety of applications favoured by the state, such as national identity cards, periodic censuses, medical and educational records and so on. Even now, there may be some enthusiasts who claim that it would be better to embrace all these new extreme digital capabilities, rather than to stem the tide of their advance. But if stemming the tide is to be successful, it has to be based on sound rational argument about rights and civil liberties, not merely on emotion and nimbyism.

One critical issue is the concept of surveillance, with its malign inference of spying and snooping on the individual. A decade ago we were using the word “information” as in “the information society”, which is a much less threatening concept. The inference was that the individual was being empowered by the growing availability of information which would help and enhance daily life. In the next decade, we should try to move away from the concept of surveillance.

The Armed Forces, which have also developed their operational capabilities around the technologies of the digital age, speak of network-enabled capabilities. That is a bit of a mouthful, but it empowers individuals in the course of their operations to access and be alerted to the activities of friend and foe. Intelligence and much else of importance to the individual is processed and filtered to provide the user in a timely manner with relevant information and instruction. Seen from the perspective of the individual citizen, giving him or her the sense that all that is known and collected about them will give them greater possibilities in their daily lives must be the pitch for the future. They must feel enabled.

In particular, a better balance has to be found between the collection and the use of innumerable bits of data which at present are not all monitored, updated, analysed nor turned into timely effective use. As in so much of information gathering, as the Minister will recall, unless there are the right capabilities to manage and exploit the raw material, the cost of its collection and storage is questionable and may even be objectionable. There needs to be a better understanding of this balance, which would help individual citizens to accept what is happening digitally all around them, often without their direct knowledge or involvement, and to perceive clearly real benefits and advantages in their daily lives, not just further infringements of their rights and privacy. I beg to move.

2.45 pm

Lord Soley: My Lords, I do not think that I will be the last person to thank the noble and gallant Lord, Lord Craig, not only for bringing forward this debate but for the way in which he has done it, which was constructive and thoughtful. I have chosen to intervene because I have had a long interest in this matter. One

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of the things that I wish to spell out is that the nature of the debate is changing in a fundamental way, because of the advances we make in science and technology.

I start a little way back from that, because if I had been addressing this issue some years ago, as I used to in the House of Commons, I would have agreed with many of the things that the noble and gallant Lord said; in fact I would have agreed with all of them, perhaps with one caveat on the nature of terrorism. It is right that in the past 50 or 60 years terrorism has not been a threat to the state, but given the nature of some modern weapons, the greater knowledge about how to create, assemble and use them, and the potential for transporting them, some of the previous assumptions about terrorism are not as clear cut as they used to be. There is a danger in that area that we have to think through rather carefully.

I began to take an active interest in this issue in the 1960s and 1970s, because I became concerned that the way that much legislation was being introduced—the Prevention of Terrorism Act was a clear early example—was slowly but with understandable reasons eroding the general liberties that we had always taken for granted. That is always a threat, and it is encouraging to have debates of this kind and for organisations such as Liberty to constantly question the state.

As I have indicated, the problem is much wider. I think back to my early days as a Member of Parliament from the 1970s onwards. I was very dubious about cameras in public places to deal with crime, for example. The difficulty was that, as an elected Member of Parliament, the population in high-crime areas and in areas of street disorder wanted cameras. You could have all sorts of arguments at public meetings, often with the police on your side, as to why cameras would not necessarily prevent crime, but the public wanted them.

One of our problems in this area is that issues such as the fear of crime are often of most concern to the public. Fortunately, crime levels are reducing, as is street disorder. That should enable us to row back a bit, but you should have no illusions that when going into areas with a high-crime level at that time, it was difficult to resist the idea of cameras in public places. People wanted them. The same is true in other areas of surveillance. People felt safer, even if there was a relatively low level of crime. It was no good pointing out that there had not been as many murders as the press said. Many headlines stating “Another murder” often referred to the same murder, but to the suspect being caught and then to him being brought before the court. People would say, “Well, there have been three murders”, when in fact there had been one; but people had a fear and the cameras provided a sense of security. As with street lighting, cameras probably do not diminish the level of crime, but they certainly diminish the fear of crime. That is an important factor.

In recent years, I have thought about DNA. I have said previously in this House and elsewhere that I do not have a problem with there being a DNA database. It cannot do a lot of damage to me as an individual, as long as there are clear legal constraints; for example, in using DNA to prevent someone obtaining an insurance policy on their life. That is a classic example. By and

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large, DNA has been very good not only in correcting wrongful convictions but, perhaps more importantly, in indicating that anyone who commits a violent crime such as rape or murder is very likely to be caught if their DNA is available.

The other part of this argument, which again touches on the issue that I want to expand on in a moment, is the pace of scientific advancement. It is very easy to get anyone’s DNA: you just need something such as a hair from their head. If I invite you round to my house and then afterwards pick up a hair that has fallen off your head on to my armchair or whatever, I can get your DNA. The question is how to protect people from such use, whether by an individual with evil thoughts in mind or by a large organisation, public or private.

We tend to conduct this debate in terms of the state, but in fact information is increasingly collected and used by private organisations and, indeed, at times by individuals. Most of us accept that without too much questioning. As many people know—I do not need to rehearse the argument here—all the big supermarkets have a great deal of knowledge about our behaviour. They also have knowledge about the numbers in our households and so on. However, you do not have to go that far; most of us will regard the Google maps of the earth as very useful but we easily overlook the fact that those mapping techniques can display whether we were in the garden and can even detect the size of our shoes.

The noble and gallant Lord, who has an Air Force background, will know that surveillance from space or from the air is much more developed now. Subject to weather conditions at the moment—I stress: at the moment—you are able to define objects in very fine detail by the use of aerial or space surveillance down to the registration numbers of vehicles parked on or near your property. In fact, currently on Google maps you can see the cars outside your house. This technology is expanding almost exponentially. It is worth reminding ourselves every now and then that it is now reckoned that the power of computers doubles every three years in terms of memory and analysis and so on, and thus we are accelerating the process of the collection and analysis of data.

I am sure that, for obvious reasons, the political parties—my own included—will from time to time get into trouble for not encrypting data. When data are lost and have not been encrypted, that is obviously a headline story. My noble friend on the Front Bench will know more than a little about that sort of problem. Obviously the more encryption there is, the better that is and the less likely the data are to be misused.

However, we should bear in mind the difficulties here. There is a lot of discussion about the desirability or otherwise of our medical records being available around the country within the National Health Service. Again, I am one of those who take the view that they should be available, as long as a person has the right to remove their records from the database. That right is important, but it is very difficult to have a level of control to the point where you can guarantee absolutely

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that no one will have access to those records. We get very worried about that. Sweden is a country with good civil liberties and a good record of freedom, democracy and rule of law. There, you can present your card to a doctor anywhere in the country—I acknowledge that it has a much smaller population than ours—and your whole medical record will be available on the computer screen. However, you get very good treatment as a result, and that is one reason why I tend to favour such a proposal, provided that the right legal constraints are in place.

Part of the answer here lies in the law. In some ways, the law has been catching up with the technology but, in other ways, it has lost out quite badly. Data protection has been an advantage, and the Data Protection Act has helped to move things forward. I am on record as having been strongly against a privacy Act because I have felt that it would be used to stop the media carrying out proper investigations. My attempts to get the media to reform the way that they reported, particularly factual reporting, never included privacy legislation. However, leaving aside the media, the other areas that now affect privacy are so considerable that we may need to think of a privacy Act. I do not know whether this will come up in future speeches here but I know that, increasingly, judges in the UK are developing what is in effect a privacy law. It is emerging almost by stealth, if that is the right phrase, along with rights under the European Union human rights charter. If I remember rightly, Article 8 of the charter deals with privacy.

Mobile phones are the other area of immense potential. You can tell not only where a person is, regardless of whether their phone is on or off, but, due to the technology, it is not difficult to tell what they are doing with it—for example, taking photographs, if it is a phone with a camera attached. Therefore, again, the technology is moving incredibly fast. As the size of handheld sets diminishes, the ability of the units to produce and analyse information increases exponentially, and it is a massive increase.

I sometimes think that we no longer give enough thought to the relationship between science and government. I remember reading many years ago CP Snow’s lecture on science and government. I cannot recall the exact date but it must have been in the 1950s or perhaps the early 1960s. In it, he described the battle to win the ear of Churchill by Lord Cherwell on the one side, who was German in origin but came out very strongly against the Nazis, and Professor Tizzard, the scientific adviser who was, in effect, removed by Cherwell. The issue at that time was the bombing raids on Germany. The argument, which will be well understood by the noble and gallant Lord, Lord Craig, with his Air Force background, was that the carpet-bombing raids would be more effective if they were targeted not just on industrial areas but on working-class areas as well. This was not some great anti-working-class crusade; it was based on the simple and obvious fact that bombs dropped on housing areas where the houses are in close proximity to each other are far more likely to be effective than bombs dropped on areas where the houses are far apart. That was a factor that influenced the direction of the bombing campaign.

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I was struck by CP Snow’s analysis that the more science advanced, the more we needed to think about the relationship between science and government. From previous questions that I have asked him on the Floor of the House, my noble friend Lord West will know of my concern, which I know he shares, about the growing ability not just of state hackers but of other organisations and individuals to crash countries’ whole computer systems. It is a profoundly dangerous and rapidly developing area. Indeed, you have to ask whether the technology moves so fast that you can never guarantee keeping up with it in terms of your ability to resist its extension.

For me, it is not so much that the principles of the issue have changed, because some of the principles mentioned by the noble and gallant Lord, Lord Craig, were present in the debate during the Civil War in Britain in the 1600s. Then, people said, “My freedom is”, and they listed those freedoms, and many of them were the things spelt out by the noble and gallant Lord, Lord Craig. I do not think that the nature of that part of the debate has changed; nor do I think that the nature of the debate has changed in terms of our needing laws to address this matter. The science and technology has now advanced so fast, and is advancing even faster, that the problem lies in our ability to know how to address it. At the same time, people want better services, be they in the health service with the ability of a doctor to see your record on screen, or the ability to prevent and detect crime. That relationship has become distorted and is difficult to keep up with.

I do not have any simple answers to this; I simply say that we need to give a lot more thought to the pace of development in science and technology and its availability to others, although I emphasises that I am referring not just to its availability to the state. We tend to have this debate in terms of the state versus civil liberties, but increasingly we need to talk about large organisations and civil liberties and, indeed, individual abuse, of which terrorism is but one example. In order to do that, we need to think very hard about the relationship between science and technology on the one side and government on the other, and how we use the law both to protect our freedoms and enhance the services that our citizens want.

3 pm

Lord Woolf: My Lords, like other Members who have already spoken and those who will no doubt make it clear in due course, we are most grateful to the noble and gallant Lord, Lord Craig, for giving us the opportunity to discuss this very important subject.

We are concerned with a balance, as has been indicated, between the rights—the civil liberties—of individuals and organisations and the right of the state to have responsibilities for protecting society against crime. There is a further dimension: the rights of the individual who the state seeks to protect, which are often lost sight of, I fear. That is of particular importance in respect of DNA. It is with regard to DNA and that aspect of the responsibilities of the state on which I want to focus. There have been

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difficulties in determining the approach that should be adopted by the European Court of Human Rights, as well as our domestic courts.

There is a distinction between the reported decisions of our domestic courts and the most recent decision of the ECHR in the case of S v Marper. It is an important distinction because the courts in this jurisdiction in the same case up to the House of Lords took the view that the retention of DNA data—both samples and profiles—was justifiable if Article 8.1, which protects privacy, applies. The European Court concluded that the approach in that case by the House of Lords—I disclose that I was sitting as Chief Justice in the Court of Appeal—was wrong because the European Court thought that this country’s approach was disproportionate and arbitrary. It is in that regard that I want to say a few words. I do so in the light of the recent report of the Constitution Committee of which I have the privilege of being a member, which looked at these matters and emphasised their difficulty and importance.

Like the noble Lord, Lord Soley, it seems to me that the intrusion into the private rights of the individual of retaining DNA data, in so far as it constitutes an interference with Article 8, such interference is the minimum. The problem arises as regards the use to which what has been retained is put and the protection to safeguard that retention. There is also the difficulty of how long it is appropriate for the samples to be kept. The matter was examined in detail by the House of Lords in the case to which I referred in a speech by the noble and learned Lord who will follow me, although he may not follow the views that I express. I strongly endorse his speech when he considered and weighed the balance of advantage between the retention of samples as against the intrusion which was constituted.

The Government have yet to indicate what their response will be to that decision. They are still considering, as we have heard, their response to the report of the Constitution Committee. I emphasise that the DNA presently available could hugely benefit individuals who may be the subject of crimes, never mind any increase in the amount retained. It is important to bear that in mind. First, particularly in relation to sex crimes and offenders who are unknown to the victim, great protection can be provided by a DNA bank. If the DNA bank becomes extensive, as it should in the course of time, the ability to commit that sort of crime without being detected will be substantially reduced. That has to be placed on the scales as against the inroad into the privacy of those whose samples are being stored.

If, as I believe many of us would be prepared to do if encouraged and invited to give samples voluntarily, no problem would arise. But the likelihood is that those whose DNA we need to know about will not voluntarily contribute their DNA to be retained. In order to achieve protection for a section of the public, the Government must carefully devise a system that is not arbitrary. I use the word “arbitrary” as incorporating the word “discriminatory”. The European Court decision was based largely on discrimination. We were said to be discriminating in our present legislation between those who had been acquitted of a crime and those who had been convicted. It was thought that there was

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an imputation that if someone’s DNA was retained it was a suggestion that you had been or would be guilty of a crime, which was inconsistent with the presumption of innocence.

Personally, I do not believe that that is an inference that, in the context of that case, could properly be drawn on, but there is a hierarchy of courts and Section 2 of the European Convention on Human Rights Act requires us to take that into account. We do not have to follow the European Court's decision, but in the normal way, we do, and the circumstances in which we dissent from a decision of the European Court should be kept to a minimum. That is why we need to look at our law and produce something different from what exists—I believe that that could be readily achieved—which could not be said to be discriminatory, because it was based on the premise that benefits can be attained by having a bank of DNA irrespective of the guilt or innocence of those whose DNA is being retained. At the moment, what is complained about is the fact that the majority of those whose DNA has been retained had been convicted of a crime, thus the inference. We could revise our system so that it did not fall into that trap.

Secondly, we must have proper safeguards clearly required by statute to ensure that the database can be used only for appropriate statutory purposes. Thirdly, we must limit the uses to which it can be put and those who have access to it. If those safeguards are observed, I believe that we can take forward the benefits of DNA without infringing inappropriately the human rights or civil liberties of the individuals whose DNA is being preserved.

3.11 pm

Lord Steyn: My Lords, I would like to apply what is sometimes called the casino principle. That is that everyone has only a limited number of chips to play. I would like to address the subject of the national identity register, which will store biographical information, biometric data and administrative data linked to the use of an ID card. Upon my retirement as a Law Lord in the second half of 2005, in reply to media inquiries, I expressed sceptical views about a national identity card system. My views have hardened. I am now strongly opposed to such a system. I would like to explain why.

The Identity Cards Act 2006 received Royal Assent on March 30 2006. That legislation was no doubt influenced by the global insecurity following 9/11 and the Patriot Act and the Homeland Security Act in the United States in the era of President Bush. It is noteworthy that even in that era, the United States did not permit the development of a national identity card system.

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