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But is this proposed accumulation of stuff effective? If you want to find a needle in a haystack, do not build a bigger haystack—storing a lot of stuff may just tie investigators in knots. Also, it is easy to mislead machines and lay false trails. For instance, I accidentally left my mobile behind today, so I will not appear to have been in the House. Lastly, a lot of the data are not correct or do not cross-reference correctly, so you can draw wrong inferences from the material.

We must use human intelligence, properly targeted and properly controlled. The control issues that the noble Baroness, Lady Manningham-Buller, mentioned are extremely important. We recreate what I call our digital footprint very rapidly, through our record of travel, use of credit cards, telephone calls, the tracking of the IMEI number of your mobile phone as you wander around, and the purchases you make. People do not realise that it does not take long to build up a picture of someone’s life. Even if you start from scratch, with proper surveillance intelligence and interception you can build up a picture of whether someone is a criminal very rapidly, much quicker than you think. Therefore, I do not think you need a huge tail of stuff behind someone.

I always worry about the people who will look at the material. I remember that the definition of a puritan is someone who has a haunting fear that someone, somewhere, is enjoying themselves. We have all done something silly at some time—at a stag party, a hen party or somewhere—and told little white lies, and I always feel that we all have a right to rehabilitation and should be allowed to forget some of those past embarrassments. They should not be available to create a risk of blackmail in the future. If something is stored, there is a good probability that it will eventually leak. That is the danger, however good your security is.

I congratulate the committee on an excellent report.

11.16 am

Baroness Miller of Chilthorne Domer: My Lords, it is customary to say that reports are powerful but this report is the most powerful that, in the 11 years that I have been in this House, I have seen from any committee in either House. Its power comes from the fact that it delves into the heart of the principle of what freedom means in the 21st century. In recent years, the ability to gather and store data on people has developed to beyond anything our legislation was designed to cope with, even legislation that passed into statute as little as 10 years ago. The committee was composed of individuals with a deep understanding of what the constitution is meant to protect. Therefore, it has produced a thoughtful report and one with many practical suggestions. I associate these Benches with the tributes paid to Lord Holme of Cheltenham, whom we of course greatly miss, and with the moving tributes to Lord Dahrendorf and Lord Bledisloe. The House will miss them all greatly.

The committee states in its report:

“We regard a commitment to the freedom of the individual as paramount. It is a precondition of the functioning of our existing constitutional framework”.

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That concept is incredibly important in the debate that the committee goes on to address—that freedom means two things: freedom from interference in our private lives, and the freedom provided by security so that we can go about our lives safely. I also found the evidence volume extremely interesting. One example of it is page 183, where Professor Bert-Jaap Koops from the Tilburg University Institute for Law gives an overview of the approaches to the right to anonymity in France, Germany, the US and Canada. It is important that the committee took that much wider view because, in a world where people and data travel so much, it is impossible to confine our view to the purely domestic. ID theft can and does happen on a global scale, and international events of course produce domestic legislation. There is no more powerful example than 9/11 in the US producing the domestic legislation that we passed in haste but now rubber-stamp each year.

The committee identified that public acceptance of a much increased level of surveillance had clearly resulted from the terrorism threat, but we on these Benches are astonished that the Government are so dismissive of the recommendations in paragraphs 486 to 488 that they should engage the public properly in a debate about the balance between the risks and benefits of surveillance, data collection and data sharing. They just pass the buck to the Information Commissioner’s Office. Richard Thomas in his time in that office has done a fantastic job at raising public awareness of these issues and no doubt his successor will continue this work. However, leaving the whole task to the ICO would only be appropriate at all if the ICO were resourced at a level that enabled it to do the work on the scale that the committee is recommending—although I am not sure that it would be appropriate even then. Can the Government say by how much they are intending to increase resources to the ICO’s office?

While on the subject of the Information Commissioner, I remind the Minister that it was only after opposition in your Lordships’ House, which voted for my amendment in the Criminal Justice and Immigration Bill in 2008 to strengthen the Information Commissioner’s powers, that the Government conceded that that was necessary. They have still not produced the regulations to do that, as the committee points out in its report in paragraph 243. The same powers need to be applicable to the private sector, with which the public sector is utterly intertwined anyway. These Benches will pursue that at every opportunity.

This report is not the first to warn that the Government’s enthusiasm for data sharing has given the impression that they view the practice as an “unconditional good”. The Thomas-Walport review warned of that in 2008. The Government have had some time to pay attention to the risks that that report underlined and to prepare themselves better for a response to this report.

The report mentions an interesting new term, “dataveillance”—amassing personal data, data sharing, data mining, profiling and data matching, as well as more obvious forms of surveillance, such as CCTV, which pose a very different level of threat to freedoms.

I am grateful that the noble Lord, Lord Pannick, has saved me some time, because he has examined deeply the question of DNA retention. In our debates

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on the Policing and Crime Bill we will have a further opportunity to debate that issue, and we will take the opportunity to challenge the Government’s attitude.

The report outlines many concerns that too much data are collected. In other cases, too many people have access to those data. The technology is leaping ahead of political oversight. In paragraph 12 on page 438 of the evidence, there is an interesting comment about the police national computer, which is subject to “collaborative working”, whereby people who might like to access it, but strictly speaking should not, can in fact get the information they need very easily. The evidence points out that vehicle and handheld terminals make confidentiality much more difficult to assess and control. That is the technological challenge.

Many of your Lordships have mentioned the application of the Regulation of Investigatory Powers Act. The fitness for purpose of that Act covers everything from life-and-death issues to the everyday. On death—we are debating this in the Coroners and Justice Bill—the Government maintain that there is a need to guard methods of gathering intercept evidence and that the evidence must lead sometimes to closed inquiries substituting for inquests—even though we are apparently the only country in the world to find intercept evidence inadmissible. However, I accept that there is more debate to be had on this. I was very interested in the contribution of the noble Baroness, Lady Manningham-Buller, on this subject. We urgently need the implementation of the proposals in the Chilcot review, which, according to the information that the Government recently sent round, is still at the stage of a design model—yet we are passing legislation all the time that depends on the outcome of that review.

On a more everyday level, there is concern about the interception of communications for commercial gain. There was an illegally trialled interception of web traffic when BT and Phorm decided to intercept users’ web traffic to produce a targeted advertising system. The Government’s response to that was very weak. I have mentioned previously in this House that the Home Office’s lack of interest in that illegality was ill advised and led to speculation as to whether it was due to its own wish to use such technology that it regarded such an illegal trial so lightly.

When RIPA became law nine years ago, such technologies were beyond the scope of legislators in making decisions on whether the Act was up to the job. Now its enforcement is something that the Government need to address. If the legislation is lacking in any way they must bring forward suggestions to improve it. The report considers two types of surveillance, as other noble Lords have said. They have mentioned all the issues around the use of RIPA by local authorities. The report’s recommendations on that are very important.

The report also highlights the fact that authorisation is available to too many bodies, that RIPA allows surveillance authorities to authorise their own activities without judicial oversight—that is a particularly important gap—and that there is a division of responsibility for surveillance between different commissioners. That was interesting to read and there was a variety of opinion as to whether those activities were satisfactory

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or unsatisfactory. There was clearly a difference of opinion as to whether or not the system was unduly bureaucratic.

RIPA was passed in 2000. I remind your Lordships that local authorities were not at that time included in the list of public authorities that could have access to communications data. That provision was introduced in secondary legislation in 2003. That highlights the danger of secondary legislation and how very careful we must be when granting the Government powers under something as critical as RIPA. The orders can result in infringements such as those mentioned by noble Lords this morning.

We found that the Government’s overall response to the criticisms of RIPA were very weak. I am looking forward to the Minister’s defence. In other European countries, such as Germany, there is a constitutional commitment to the principle of proportionality which governs all data and surveillance rules. I should be interested in the Minister’s comments on the proportionality issue.

The report proposes some immensely important actions on Article 8 compliance, on judicial oversight of surveillance, on identification systems, and on areas for new legislation. The report has effectively drawn up a work programme for the joint committee that it proposes, whereby, as legislators and scrutinisers, we would have a far better grip on this whole area. The key recommendations are in paragraphs 493 and 494. The Government may not, as their response states, be,

“persuaded that the creation of a new joint committee is the most effective way to ensure effective scrutiny”.

I ask the Minister: do the Government prefer the disjointed approach because it leaves far less room for informed challenge? That is what they are saying—if they do not want a joint committee, they prefer a disjointed approach, with responsibility and oversight spread between different departments and Select Committees. However, the report highlights that the link between the citizen and surveillance is the basic functioning of our constitution. If the Government are serious about constitutional reform, they must accept that the proposal to establish a new joint committee on surveillance is essential.

11.29 am

Lord Henley: My Lords, I start by offering my congratulations to my noble friend Lord Goodlad and his committee on producing this excellent and weighty report with its 44 recommendations to the Government. I take it that, when the noble Lord comes to reply, he will not try to respond to all 44 of the recommendations—the Government have done that—as I think that he will have quite enough to do in responding to the various points that have been put to him this morning.

I also congratulate my noble friend on attracting such an excellent list of speakers to his debate. It includes current members of the committee such as the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Peston, new members such as the noble Lord, Lord Pannick, and former members such as my noble friend Lady O’Cathain, who described

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herself as “time-expired”. My noble friend might describe herself as time-expired; I would never dare to do that and I do not think that many other members of the committee would dare to describe her as such. I am sure that in due course she will have an opportunity to go back on to this committee or other committees, as appropriate.

I also congratulate my noble friend on attracting the noble Baroness, Lady Manningham-Buller, to this debate. She brought her expertise to it and reminded us that not only was there Volume I of the report, which I have read, but the even weightier volume of evidence, which she seems to have studied in great detail. I confess that I have not yet done that, but I have a long journey ahead of me and no doubt I can look at it in due course.

The noble and learned Lord, Lord Morris of Aberavon, summed up the Government’s response to the Select Committee’s report when he said that some of it was encouraging but that some was, frankly, disappointing. That theme seemed to crop up again and again in speeches from noble Lords during the debate. Therefore, we certainly look forward to what the noble Lord has to say when he replies.

At this stage, I make one brief comment on that response. As I understand it, the committee’s report came out on 6 February and the Government produced their response, within almost three months, on 13 May. Therefore, I thought that on this occasion the Government had been reasonably speedy—something that the Ministry of Justice and other departments certainly do not always manage, a point on which I think that we will comment again later when we discuss the consultation on the European Court of Human Rights case, S and Marper, which the noble Lord, Lord Pannick, mentioned.

I think that I can sum up the view of my party very briefly by quoting what my noble friend Lady Neville-Jones said in a debate in April on the regulation, collection and retention of personal data. She said that we all,

“understand the argument that the collection and retention of personal data are necessary for the efficient running of public services, and to aid our security services and the police in the fight against terrorism and serious organised crime. However, as has also been said, unchecked this justification is leading to an exponential increase in the amount of personal information that is collected, retained and accessed by all manner of different bodies”.—[Official Report, 2/4/09; col. 1190.]

That briefly sets out our position and stresses the need for both balance and proportionality, a point stressed by my noble friend Lord Goodlad and again by the noble Lord, Lord Peston. The noble Lord cited both Adam Smith and John Stuart Mill, who seemed to be a slightly lesser man but almost as great. Even so, the noble Lord saw that one had to take the view of one in terms of the protection of the individual and the protection of the state and of the other in terms of the need to protect our privacy.

Having set out our views, perhaps I may deal with one or two points raised during the debate. The first concerns the whole question of data sharing and use. We welcome the Government’s decision to drop Clause 152, which I think was its last numbering, from the Coroners and Justice Bill. Not only will that save a degree of time as that lengthy Bill travels through this

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House, but leaving the clause in would have had a truly dramatic impact. It would have allowed Ministers to make an information-sharing order, meaning that a whole range of public servants would have had access to the public’s personal data. Data would have been able to be shared by officials across Whitehall and local authorities and even with companies in the private sector simply in order to meet a government policy objective. Therefore, we welcome that and we consider it important, particularly in the light of the fact that public trust in the ability of government to keep personal details safe—this should be stressed—is at an all-time low. The noble Lord will remember that only last year HMRC lost the personal data of almost half the population, leaving, I am told, some 7 million families worried about the security of their bank accounts. More recently, we have heard about the details of thousands of criminals, held on a memory stick, being lost by a government contractor. Therefore, we will continue to oppose any steps towards creating an even larger database by stealth and thus we welcome the dropping of Clause 152.

I move on to the questions about DNA raised by the noble Lord, Lord Pannick. We have consistently called for the National DNA Database to be placed on a statutory footing. Having confirmed their intention to respond to the recent ECHR judgment, which I mentioned earlier, the Government should follow through that pledge rather than attempt to shoehorn arrangements into the Policing and Crime Bill to give the Home Secretary the right to make regulations on the retention and destruction of photographs, CCTV images, fingerprints and impressions of footwear, as well as DNA samples, without the need for a full debate in Parliament and without giving any indication of what those regulations might be. The noble Lord, Lord Pannick, referred to the Government’s response to this on page 8 of their report. He stressed that the Government had announced that there would be consultation. On 7 May, we finally got the consultation document from the Home Secretary setting out her proposals for a retention framework, which, as the Government’s response says,

“seeks to gain the support and confidence of the public and balances public protection with the rights of the individual”.

The Minister will know the criticisms that I have made of some of the consultations that his department has conducted in the past—that is, how long they have taken and how long we have waited for a response from the Government. I shall be very grateful for anything that he can say on that matter and, in particular, if he can say a little more about when he hopes the Home Office will complete that consultation.

As many noble Lords have pointed out, there has been a massive expansion of CCTV over the past few years. It has delivered many disadvantages in undermining civil liberties and bringing about a loss of privacy and it is questionable whether it has brought any advantages. The noble Lord, Lord Peston, stressed that we had to ask whether it works and whether there are better ways to spend the money. He thought that street lighting might be a better approach. He should remember that, if he expands street lighting, there will be further objections from the astronomers. There will always be other people who worry about these matters, and there

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are genuine complaints about the loss of darkness that we experience. Going back to the importance of CCTV, I think that it is worth looking at the remarks of one senior policeman—I think that it was the head of the Visual Images, Identifications and Detections Office at Scotland Yard—who revealed that only 3 per cent of crimes are solved by CCTV. The noble Lord is correct to ask whether it works. It might, as my noble friend Lady O’Cathain said, make people feel better and safer, but it does not do anything to make us safer, as it does not lead to a greatly increased rate of convictions.

I end by referring to the closing remarks of my noble friend, who stressed that paragraph 144 was possibly the most important one in the report. I suggest that it might be framed and put on the desks of all Ministers. The last sentence, in particular, would be a timely reminder to them of how to make up their minds on these matters. It says:

“Privacy and executive and legislative restraint should be taken into account at all times by the executive, government agencies, and public bodies”.

If the Government could bear that in mind, there would be no need for a further report in due course from the Select Committee on the Constitution and a further debate of this sort.

11.41 am

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I start by warmly thanking the noble Baroness, Lady D’Souza, for her moving and personal tribute to Lord Dahrendorf. It was clearly a tribute to one of her noble friends in every sense. It was a very moving tribute and we are grateful to her for coming in to this debate. As someone who did not know him as well as the noble Baroness did but who respected him from afar as a fellow Member of this House, I have two points to make. First, what an honour it was for the United Kingdom that he should choose to come here and become a citizen of this country and then a Member of this House. Secondly, in a sense, the debate in which we are indulging today, which involves these difficult and complex questions of liberty of the individual and security of the state, and the interrelationship between the two, is perhaps an appropriate one for the moving and personal tribute given by the noble Baroness. I thank her on behalf of the House.

I also thank the noble Lord, Lord Goodlad, for introducing the debate and all noble Lords who have spoken in it. I thank him not just for introducing the debate but for having chaired the committee along with the late Lord Holme while it discussed these important topics. The noble Lord and his committee have made an important contribution to the debate on surveillance and the report sets out clearly the issues facing us all. The Government responded in May and I have just seen the constructive analysis published by the committee this month.

As I said, the issues are very complex. The Government have to strike a balance, as all noble Lords have said, between the right of the public to their privacy, their right to the more effective delivery of public services and their right to protection from crime and terrorism.

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I want to make it clear that the Government’s role is to safeguard our citizens from those who would seek to do us harm while ensuring that our rights to privacy and freedom are protected. Broadly speaking, the noble Lord’s committee, this debate and the recent debates in this House—I have in mind the one called by the noble Earl, Lord Northesk—have sought to consider the question of the role of the state in protecting civil liberties and freedom. Our country has a proud tradition of individual freedom. This involves freedom from unjustified interference by the state. It also includes freedom from interference by those who would do us harm.

We believe that as a Government, we have put in place a strong legislative framework to protect the rights of individuals. This includes the Human Rights Act which obliges public authorities to comply with European convention rights, including the right to respect for private life. That right is always balanced against collective interests, such as national security and the prevention of crime. The noble Baroness, Lady Manningham-Buller, reminded us what the convention says in relation to the state’s role in that, too. It is right that we should constantly satisfy ourselves that we have got that balance correct.

For example, the balance needs to be right in a rapidly moving world. Developments in technology are especially rapid, providing greater opportunities and benefits to us as individuals. But those who would do us harm can also take advantage of the developments. This creates an ever-increasing challenge as we seek to safeguard and protect the public. That is a challenge that the Government and their enforcement agencies are duty bound to respond to. The use of data is essential to delivering efficient, effective and joined-up public services. Recently, communications data, which are the who, the when and the where of communications—not the content—have been key in securing convictions in the Rhys Jones and Hannah Foster murder cases and to bring to justice those responsible for the suicide terror attack at Glasgow Airport. Such data also helped to uncover a global online paedophile network which has so far led to 50 arrests in the United Kingdom.

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