Surveillance: Citizens and the State - Constitution Committee Contents


Examination of Witnesses (Questions 240-259)

Mr Gareth Crossman, Dr Eric Metcalfe and Dr Gus Hosein

6 FEBRUARY 2008

  Q240  Lord Peston: On a large scale, though.

  Dr Metcalfe: On a large scale.

  Q241  Lord Peston: Let me give you an example, if we were to go into the private office of any government minister, except that it is usually a mess, but in theory they have got a great number of phone numbers, telephone numbers, and a whole lot of records, but that is not what you have got in mind when you are worrying about this kind of problem is it? I am trying to get to the basis of what it is you want us to focus on.

  Dr Metcalfe: It is a question of core principle as well as a question of scale. Private individuals can collect information. I can stand on a street corner in the village that you refer to and make a note of the comings and goings and that, in and of itself, my private legitimate act, or at least lawful act, can in doing so gather a lot of valuable information which people might not want to be disclosed. However, we are talking matters of scale when private companies collect information and also when governments collect information. Governments obviously have the power to request and indeed require a great deal more sensitive information about private individuals than I can standing on a street corner.

  Q242  Lord Peston: Yes, of course, but that goes back to the scale point and you have made that point. I am really just trying to understand from this particular question what it is you want us to focus on because, after all, the outcome of all this will be a report at some stage. Is your view that when we are looking at databases, and we will accept that we are now talking large-scale, and first and foremost government, what we ought to focus on is individual rights in this matter, that should always be a focus when we are looking at it, and within those rights the particular right to privacy. If I were asking what your philosophy of all this is, would that be a fair summary?

  Dr Metcalfe: That would be a fair summary.

  Q243  Lord Peston: But it would not then rule out the creation of databases, it would question every database in those terms.

  Dr Metcalfe: Absolutely.

  Lord Peston: That is very helpful.

  Q244  Lord Morris of Aberavon: In JUSTICE's written evidence, you said that "the common law right of privacy has remained significantly underdeveloped" in the light of new technologies. Why is that and how would you define the common law right to privacy? It seems to me that one of the strengths of the common law has been its adaptability. The same law that applies to horse-drawn carriages as to motor cars, and one could give dozens of illustrations. Why has this come about? Why has the common law not kept up with this need?

  Dr Metcalfe: As we indicated in our written evidence, it was not that the common law had not been concerned with privacy but it has not been felt necessary to address or protect privacy by means of overt rules, it has primarily been a matter of non-regulation. It has been interesting, since the Human Rights Act, in particular, to see the development of common law in this area. You can trace a very interesting line from the Earl Spencer case in 1998, when the European Commission on Human Rights, as it was then, indicated that it thought the law in relation to breach of confidence in the United Kingdom would be sufficient to protect individual privacy rights. Then you had the Douglas v. Hello! case in 2000, and more recently the cases of Douglas v. Hello! 2005 in the Court of Appeal and Campbell v. Mirror Group. We find the courts are now beginning to develop the traditional common law breach of confidence principles and use that to act as a more general remedy for breaches of a person's Convention rights since the Human Rights Act came into force. I would certainly say that the common law is now being used in a way to develop and protect individual privacy. What is interesting is that it took the incorporation of the European Convention on Human Rights into our domestic law to actually prompt that development. Traditionally, I think judges have been reluctant to use the common law to fashion a broad-based common law right to privacy, primarily, on democratic concerns because they feel that, if I understand it correctly, it is more a matter for Parliament. Privacy involves the balancing of so many interests across so many different areas—banking; collection of personal information defamation; the balance between the right to free expression and personal privacy—that they felt that the common law was not a very good tool. Still a criticism can be made that the law in relation to breach of confidence, while it is increasingly used as a remedy in relation to privacy rights here in the United Kingdom, it is perhaps not sufficient. In the most recent House of Lords case, Lord Nicholls describes the breach of confidence as being better understood as a tort of the misuse of personal information. That is a welcome development. The concern, however, is that even framing it as a misuse of personal information, it does not quite go far enough because the ingredients of the tort are still relatively closely defined and not as broadly defined as we might like. When I spoke of the common law by the way I was not merely referring to the role of judges, I was referring to our common law tradition, which is also the way in which Parliament writes its laws.

  Mr Crossman: Privacy is such a huge area that it is often very disparate areas. There is very little relationship between the development of the common law of privacy in relation to the application of Article 8 to media privacy and breach of confidence, which is an area heavy in case-law, there has been a lot of case-law about it, compared with what other aspects of privacy you might be talking about such as mass informational surveillance. Common law through the courts has been well developed in the former area, because it is about an individual's rights. When you are talking about mass informational surveillance, it is very much more difficult to pin the tail on whose rights are being involved because if you take the application of Article 8—the right to privacy—it impacts on a very large number of people, but only in small ways, such as information being passed around about them maybe in an excessive manner. The way the Human Rights framework works is that you need to be a victim in order to bring an action, so that if you are talking about someone subject to a control order, for example, it is very easy to identify who the victim might be in order to bring a Human Rights Act case. That is why there has been little common law development with the exception of a few cases, it has not been an area which has been particularly developed. My view is that for specific areas you need to have more Parliament-led statutory basis for regulation through improved data protection laws; through formal statutory regulation of CCTV; through review of the way that regulatory investigative powers work. That is a far better focus for statutes than it is through common law development.

  Q245  Chairman: Before I call Lord Lyell, could I ask whether you think that it would be in the public interest in this country for the Government to be required to undertake privacy impact assessments, as in the United States and in Canada?

  Dr Hosein: I think that would be a highly recommended step forward. Australia led the way in rights impact assessments, followed by Canada and the United States. However, there is still the ability to write a privacy impact assessment on a highly invasive system and make it all make sense. For instance, the US visit system in the United States, that fingerprints all foreigners visiting the United States, stores those fingerprints for 100 years and stores the biographical data for 75 years, has a privacy impact assessment. It checks all the boxes and complies with the rules of the US Government but we would also argue that it does not protect privacy in any way. We have seen a regulatory impact assessment for the Identity Cards Act that also disclosed very little. So, in order to make privacy impact assessments work, we need to make sure that the requirements fulfil the purpose of the impact assessment, which is properly to assess the privacy issues and the data protection issues even when they might differ.

  Q246  Lord Rowlands: Some of the members of the Committee are going to Canada and the United States; are there any other illustrations of practices in either of those countries on which we should particularly focus?

  Dr Hosein: What is most interesting about the comparison with other countries such as the United States is the high-level public debate. Let us use, for example, the current controversy as to whether or not the President can authorise interception of communications of suspected terrorists whether in the United States or abroad. That is causing a constitutional crisis. Yet, as we have discussed so far this morning, that is the law of the land in this country. It is interesting to see the differences in political culture in how that reflects the law. In comparison, much is said about how awfully the United States has conducted itself on surveillance issues since 11 September 2001, but for what it is worth, on the surveillance issue, it has generally been more regulated than the conduct of UK and EU Governments.

  Lord Rowlands: But equally, if any of you had any information that would help us to prepare for our visit, we would be grateful.

  Q247  Viscount Bledisloe: But if it is totally unclear in this country what is or is not the right to privacy, it would be very difficult to make a privacy impact statement, would it not?

  Dr Metcalfe: It is clearer now with Article 8. As Mr Crossman indicated, common law rights for breach of privacy are centred around private individuals and confidential information which they have identified as confidential, and most of the case-law has related to celebrities and newspaper or media groups, so we are talking about the development of a very small area of the media pool. Mr Crossman indicated very broadly that there are many more issues in relation to that. Article 8 cuts across the board and provides a very good general principle establishing the right to privacy. The difficulty with Article 8 is that for members of the Council of Europe, it does not specify the particular legal principles that you have to adopt because it is written to embrace both civil law and common law jurisdictions. To a certain extent, civil law jurisdictions, based on Roman law and Napoleonic law, are slightly more comfortable with the regulation of personal identity because their legal systems are structured differently, whereas in this country, as we referred to in our written evidence, you have a tradition of simply protecting privacy by not regulating it; by not legislating in ways that interfere with it, and that provides the real challenge.

  Q248  Lord Lyell of Markyate: How can Parliament act as a restraint on "the executive's enthusiasm for the administrative benefits of surveillance and data-collection", which you urge in your very good paper; how can it do it in practice? I have one suggestion to make in a moment.

  Dr Metcalfe: I am not sure that it can restrain the enthusiasm any other way except by refusing to pass laws in relation to those areas, or refusing to pass disproportionate laws. The obvious check that Parliament has over the executive is in the making of laws. The executive can propose them, but it is for Parliament to decide ultimately what laws are made, and to scrutinise those laws very closely in terms of their proportionality and, going back to the basic point, the necessity. Is it actually necessary, for example, to create a national identity card?

  Q249  Lord Lyell of Markyate: Can I suggest to you that the way to do it—there is this awful word "transparency" but it is to make it obvious who is responsible—before one is surveilled or one's property is entered, or whatever, that some minister or public official has to be responsible for giving the authority, and they can be seen to have done that and they can be criticised if they are disproportionate. Would that not be a good protection?

  Dr Metcalfe: It would depend on the kind of interference that we were referring to. Obviously, in some cases—and interception is an obvious one—there will be very good reasons: you would not want to make an interception warrant public, or you could not make the terms of it public without losing the obvious covert benefits that come with that. With other kinds of authorisations, for example, it would be a lot better if there was a specific database of decisions in relation to the placement of CCTV cameras. So, I agree that greater transparency as a whole is a very good general principle. The difficulty I have in answering that question is that a lot would depend on the particular kind of interference in the particular area we were talking about.

  Dr Hosein: One way we could enable Parliament to view these issues in a clearer way is to see it as a public policy issue and perhaps, controversially, not as a rights issue and not as a security issue. The ID card is a great example where ID cards were promised by the Government as a security issue and so therefore opposition to ID cards was, "oh, you're interested in a selfish right of privacy in favour of the state's need for security". Instead, if you approach it as a public policy issue and ask, "Can you build this database? How much will it cost to implement this system? What are the ramifications across Government and the private sector?" Then you will see that often, as we have found over the past 15 years, when you design privacy into the development of law and technology, the technology becomes more feasible and more likely to work. When you do not design it in, that is when they start falling apart and you end up with these massive databases that can never be built. To recap: see it as a public policy issue first, with the connotations of security and individual rights.

  Mr Crossman: There is one very specific constitutional suggestion that I would make in response specifically to that question. Whenever legislation is passed, Parliament has been able when considering privacy to determine of proportionality: what is the appropriate exercise of these powers by different bodies. What you find when you look at pieces of legislation with privacy impact is that frequently you will see that what has happened is that Parliament is asked to pass the framework for primary legislation; the detail as to who actually exercises these powers and what powers are exercised is reserved for secondary legislation. As, of course, you will all know, secondary legislation goes through on the Aye or the Noe. You do not, as a Parliament, have the opportunity to consider if you have ten public bodies who are to be given these powers, eight of them you might say, "absolutely appropriate, but I am not happy with these two. I think that would be disproportionate." There is no constitutional reason whatsoever why Parliament could not be permitted to determine to amend resolutions. There are two precedents for this: first, in the Civil Contingencies Act, Parliament has the opportunity to amend resolutions passed under this Act. Early drafts of the Identity Card Act had the ability for Parliament to amend resolutions in relation to determinations by the Secretary of State as to who was designated. So, there is no constitutional basis why this cannot happen. I would suggest that it is absolutely appropriate when Parliament is being asked to consider which bodies have exercise of which powers, that they be able to make a determination as to which of those it is appropriate to have. The reality is that does not happen because Parliament is simply given a piece of secondary legislation and asked to approve or disapprove it.

  Q250  Baroness O'Cathain: Mr Crossman, to you again, your written evidence says there is no justification for the National Identity Register associated with the Identity Card Act. But on the other hand, you said that there is justification for other information on a database such as the Children's Index, which is now called, Contact Point. Can you explain why you draw this distinction?

  Mr Crossman: Absolutely. I should start by qualifying the first part of the comment. At Liberty we look at things essentially from a human rights perspective and when you are dealing with a qualified right such as Article 8—the right to privacy—you look at it in a qualified manner that you will not do if you are talking about an absolute right, such as the prohibition on torture. For a starting point, I would not say, "there is no situation whatsoever in which a national compulsory identity card scheme could be justified". I cannot say that as an absolute. To do that would be to necessitate saying that the previous scheme—the wartime scheme of compulsory national identification—was not justified. I do not have an opinion as to whether it was, I suspect it might have been, so I do not take an absolutist position on this. What I would say is that this scheme, proposed as it was with the justifications that were given for it and the societal consequence that I believe would flow from it, was unjustified. There is a distinction there between saying that you cannot justify a particular type of database and saying, "is what the Government is proposing justified?". In relation to the Children's Index, I would say that there is perfectly legitimate basis for a limited database of children who have been identified "at risk" to be stored with appropriate access for those individuals who might have responsibility for their care. What the Government proposed originally—it has been limited somewhat as it has been whittled down—was a mass informational database of every single child with very random entry criteria, such as causes for concern—whatever that meant—with a huge amount of public access to it which my belief was not only had privacy implications but would prove to be counter-productive, in that anyone working with children, because this came out of the death of Victoria Climbié, anyone working on the coalface of Social Services is always going to record information for fear of being the person who did not record something, information overkill, meaning that you cannot see the wood for the trees, and those children who are genuinely at risk being overlooked because there is so much data. That is why, for me, proportionality, legitimate purpose, is at the heart of approaching any particular database.

  Q251  Lord Rowlands: But is this not going to be, whether you like it or not, subjective? Dr Metcalfe, earlier on, mentioned I think in a critical fashion, the collection of medical records on a central basis. I would find personally particular comfort from the fact that my records are on a central basis so that if at the weekend I had an accident, somebody could access immediately what medication I was on when I might not be able to tell them and therefore they might not make mistakes. I would not object to that. So how does the individual subjective view of whether we want to be on databases link in to this whole idea of proportionality or indeed whether we should or should not have them?

  Dr Hosein: You would begin by letting individuals choose to be in a database or not to be in a database. It is a whole opt-in process.

  Q252  Lord Rowlands: Opt-in, not opt-out?

  Dr Hosein: Yes, opt-in. I do travel a lot on weekends and I want my file on the database. But that does not mean the database ought to be designed the way it has been designed, which is potentially 400,000 people across the country would have access to your medical records. There are ways of designing this technology so it limits what is absolutely necessary to hold the net record and limits who has access to it under what circumstances. But that is not how it is being designed now.

  Q253  Lord Rowlands: But if I had criminal intent I would certainly not opt in. How do you run a voluntary database when many of those who would not want to be on that database for illegitimate reasons would not obviously volunteer or contact?

  Dr Metcalfe: I think it goes back to the points about necessity and proportionality and there is obviously a difference in, say, a criminal database where people have been convicted of criminal offences. Their choice as to whether their records should be stored is obviously going to be non-existent and this is down to public policy reasons. Whether medical information should be stored is for a completely different reason. I should just make clear my point about the objections to the medical records database is not to the principle—I agree with you there are very sound reasons why you would want to have your medical records available electronically and if the option comes it is one that I would think strongly about exercising. But it should be my choice.

  Q254  Lord Rowlands: So the principle of opt-in is the thing?

  Dr Metcalfe: The principle of opt-in but that would be case-by-case. That would not say that is necessarily the model you would follow for every database. There are some databases for example, the National Identity Register, even though I accept that there are legitimate purposes in its creation and there are doubtless useful benefits that will flow from its creation, it is simply not necessary. It is not necessary to store that massive amount of personal information.

  Q255  Baroness O'Cathain: On opt-in and opt-out, what nobody has yet said is that people will not have the necessary information to know whether they should opt in or could opt in. Everybody in this room would almost certainly know what was going on and say, yes. On this latest example of organ donor, I am sure all of us would know what to do about opt-in and opt-out, but ask any ordinary Joe Bloggs in the street about opt-in and opt-out of a donor organ system, how would you get the message across? In order to cover the points that Lord Rowlands made about the medical database and he being on holiday and his medication being known, is it not better to do it on the basis that everybody should be on it.

  Dr Metcalfe: Again, this comes down to the case-by-case point and I think there are very good reasons for having an organ donor system which is opt-out and a medical records system which is opt-in. One obvious distinction which can be drawn is that once you are dead you do not actually have particularly strong interests or the interests that you would have tend to be outweighed by the interests of the living. In relation to medical records, we have had very detailed conversations with the NHS on this. Our disappointment is that there is an obvious opportunity for a public information campaign.

  Q256  Lord Peston: I disagree very strongly with your remarks on opting-in and opting-out of medical records. If you go to the excellent walk-in NHS clinic just opposite the Army & Navy, which is a superb walk-in place where you can get some treatment for all sorts of things. You go in and you are asked to provide information about your medical condition. When I went the first time I said, "But look surely you just log into my GP and you will get my medical records?". They said, "No, we are not allowed to do that". So, I said, "what do you do?" "Well, I am now going to ask you about your whole medical history." So I sit there for 20 minutes giving them my medical history, so we waste that 20 minutes, which is what you think is right. But supposing I say to the doctor who was seeing me, "oh, I am exercising the right of privacy here, I am not going to tell you my medical history", which is what you are saying I would have the right to do. How is the doctor to treat me remotely? The doctor would just think I was barking mad. I would have thought in any rational society the one thing that ought to be available to all legitimate people, namely the medics, is a patient's records; they ought to be there, and I find your position extraordinary, that you would advise people of their rights to opt out of telling a doctor what their medical condition was. It is barmy, and I think that most people would regard it as barmy.

  Dr Metcalfe: It would be barmy if you were in a situation of seeking treatment to refuse to tell the GP.

  Q257  Lord Peston: But why am I going to see a doctor?

  Dr Metcalfe: Your reason for seeing a doctor may be completely different. Let me put it to you this way, in order for the doctor to give you any kind of treatment, the doctor has to obtain your consent and not merely your consent but your informed consent. Why should you need more informed consent for sticking a needle into someone or performing a minor surgical operation, than the informed consent that should be involved in transferring your individual personal sensitive medical information to a national database? If you can obtain informed consent, and doctors are well skilled at explaining complex medical procedures to patients, it is hard to see why they cannot take five minutes to explain the consequences of transferring medical records.

  Q258  Lord Peston: Have you had any recent medical experience, personally?

  Dr Metcalfe: With going to a doctor? Well, yes.

  Q259  Lord Peston: I will give you an example, when you are in hospital you are always asked for your date of birth because that is used to identify all the treatments you are getting. Now, supposing I exercise the right to privacy and say, "I'm not going to tell you my date of birth", and then they cannot identify the drugs that they have to give me. I really think that taking this right of privacy in this area is taking us well beyond what any rational person would think was sensible. I wanted you to emphasise your philosophy in my earlier question.

  Dr Metcalfe: It is an extreme example of someone refusing to share information with their consultant physician, but the point I would make is that individual bears the cost, if they irrationally refuse to provide their treating physician with the information they need, then they themselves bear the cost.


 
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